Lateef Saka V. The State (1981)
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After hearing counsel for the parties in this matter, we allowed the appeal, set aside the conviction recorded against the appellant in the court of trial which had been upheld by the Court of Appeal and substituted therefore a verdict of acquittal. We indicated then, that we would give our reasons for doing so at a later date, and this we now do.
The appellant and one other person who was discharged at the end of the prosecution’s case were charged before the Lagos State Robbery and Fire-arm Tribunal with robbery, punishable under Section 1 (2) (b) of the Robbery and Fire-arm (Special Provisions) Decree, 1970 as amended by Decree No. 48 of 1971 and Decree No. 29 of 1974. Upon conviction, the offence carried a peremptory sentence of death by firing squad.
The facts in this case are not in dispute. They run as follows: At about 10 p.m. on the night of 17th May, 1974, one Sunday Kolawole (4th P.W.) the driver of a taxi-cab No. LSA 7907, a Toyota Corolla was hailed to stop along Ikorodu Road, Lagos, by three men standing at the side of the road. One of the men was dressed in military uniform while two were in civilian attire. The man in military uniform carried a rifle. The men asked Kolawole for a lift to a point near mile 12 on the Lagos-Ikorodu road where they alleged that their vehicle had broken down.
Kolawole agreed to do this and while one of the men in civilian dress sat with him at the front, the other two sat at the rear. On arrival at Ketu (mile 12), Kolawole stopped to enable the men get off the vehicle but they pleaded with him that their vehicle was still a little way ahead. He then moved on, and not long after, the man sitting by his side pleaded with Kolawole to stop to enable him answer the call of nature. As he did so, one of the men ejected him from the car, gripped him by the neck while another tried to stab him in the stomach.
He dodged the stab on the stomach but was injured on the right eye-brow and the back of the head. Kolawole managed to escape from his assailants who then drove his vehicle away. The stolen vehicle though being plied for hire by Kolawole was owned by one Taiwo Adebanjo (P.W.3). Much later that night, at about 4 a.m. on 18th May, 1974, P.W.9 Police Constable Felix Adebayo Akerele while on his way to report for duty saw 4 men engrossed in conversation standing beside a Toyota-Corolla car without identification number plates parked by the side of the road. His suspicion being aroused, Akerele challenged the men, two of whom turned out to be the appellant and the man who was discharged. Akerele called for the production of the vehicle papers but was told they were with one Alhaji Audu. He then asked to be taken to the said Audu.
Audu on being confronted offered money to Akerele which the latter refused to accept, and it was while this discussion was going on that the appellant bolted away. Akerele eventually succeeded in taking the vehicle and the man discharged at the trial to the police station. At dawn on the following day, P.W.4, Sunday Kolawole who in the meantime had received medical attention for his injuries, came to the police station and had no difficulty in identifying the vehicle impounded there by P.W.9, Akerele, as the one stolen from him the previous night. Later still, the appellant was arrested by the police with the aid of the man who was discharged at the trial and at an identification parade, Kolawole was able to identify the appellant as the man in military attire armed with a rifle who had halted him on that fateful journey to ketu on the night his vehicle was forcibly removed from him.
Neither the appellant nor indeed the man who was discharged had legal representation at any stage of the trial. The appellant gave evidence in his own defence and called no witnesses. His defence was a denial and an alibi. The tribunal appraised the totality of the evidence and understandably took the view that the appellant had been found in possession of the car soon after the robbery and his alibi destroyed by the prosecution and convicted him as charged. The appellant’s appeal to the Court of Appeal on grounds of law and facts was dismissed and hence this final appeal to this court.On the facts found by the tribunal, I am in no doubt that, the tribunal’s conclusions thereon could not be said to be unreasonable. The issue of law canvassed before the Court of Appeal was however, not free from difficulty. That court said so in so many words per Nnaemeka-Agu, JCA., thus:- “By far the most important and, perhaps, the most difficult, ground of appeal urged in favour of the appellant was ground 1 of the substituted grounds: That the tribunal did not comply with the provisions of Section 287 (1) (a) (i)-(iii) of the Criminal Procedure Law. Alhaji Olugbani, Legal Adviser for the State conceded it, rightly in my view- that the section was not complied with. He further conceded it that the Criminal Procedure Law applies in the case by reason of the Robbery and Firearms Tribunal (Procedure) Rules published as LN. 56 of 1975.”
The short issue of law raised by this appeal was whether the non-compliance by the Tribunal (which was not disputed) with the provisions of Section 287(1) (a) (i)-(iii) of the Criminal Procedure Law was fatal to the conviction in this case, in view of the fact that the court failed to assign counsel to defend the appellant. For the appellant, it was submitted that the non-compliance disclosed in this case went beyond a mere irregularity in regard to which the proviso to Section 26(1) of the Supreme Court Act (No. 12 of 1960) would apply. This proviso reads:- “Provided that the court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.” It was this proviso which was re-enacted in Section 20(1) of the Federal Court of Appeal Act (then Decree No. 43 of 1976), that the Court of Appeal relied upon in dismissing the appeal.
Section 287(1) (a) (i)-(iii) with which this appeal is concerned provides:-
“(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; and
(b) if the defendant is represented by a legal practitioner, the court shall call upon the legal practitioner to proceed with the defence.”
Section 288 of the Criminal Procedure Law provides:- “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 right of an accused person charged with an offence to give evidence at his trial is a matter of recent history. At common law he was expressly debarred from doing so and as late as 1851 in England, he certainly could not do so. The Evidence Act of 1851 (14 & 15 Vict. C.99), provides under Section 3 thereof:- “But nothing herein contained shall render any person who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction competent or compellable to give evidence for or against himself or herself ….”The foregoing disability subsisted until 1898 when the English Parliament enacted the Criminal Evidence Act of that year.
Section (1) of the Act provides inter alia:-“Every person charged with an offence, and the wife or husband, as the case may be, of the person charged, shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person. Provided as follows:-
(g) Every person called as a witness in pursuance of this Act shall, unless otherwise ordered by the court, give evidence from the witness box or other place from which the other witnesses give their evidence.”
The advent of British Colonial rule in Nigeria naturally brought along with it the liberal thinking of the time in England and the Criminal Procedure Ordinance (now Act) enacted in 1945 by that administration appears to have been modelled on the prevailing practice governing criminal trials in that country.Very many conflicting decisions have been given by the courts in construing Section 287 of the Criminal Procedure Act. There are essentially two schools of thought, namely:-
(a) those decisions which lean towards the view that non-compliance with the provisions of the Section, vitiates the trial, that is, renders it null and void; and
(b) those which lean towards the view that the trial should be looked at as a whole in order to determine if it had been a fair trial, and consequently, not such as would have resulted in a miscarriage of justice.
Oladimeji v. The King – 13 WACA p. 275, is a case falling within the first category referred to above. In this case, the record showed that the appellant who had been convicted of manslaughter had not been asked by the court which tried him if he had any witnesses to call at the end of his testimony and the West African Court of Appeal was of the view that failure to do so rendered the trial null and void. The court then ordered that the appellant should stand trial anew. In Atunde v. Commissioner of Police – 14 WACA p. 171, the facts showed that the appellant had stood trial in the magistrate’s court along with one other person. Neither of them was represented by counsel.
The record showed that the appellant had elected to give evidence, but was silent on whether the three options given under Section 287 (1) (a) (i)-(iii) had been specifically put to him. The appellant gave evidence, but was not cross-examined either by the prosecution or the second accused, Thereafter, the magistrate discharged the second accused for want of evidence. It was argued on appeal that, the manner in which the second accused was discharged immediately after the evidence of the appellant deprived the latter of an opportunity to cross-examine the former, and consequently, he had been prejudiced in his defence. Also, in this case the record did not show that the appellant had been asked if he had witnesses to call.
The West African Court of Appeal thought that the outcome of the case would have remained exactly as it was, had the appellant been asked if he had witnesses to call, in view of the fact that the appellant had given no explanation for the 17 bundles of twine sold by him to one woman. But as there was a bare possibility that the appellant might have been prejudiced in his defence and as the Crown counsel was of the view that this was a fit case for a re-trial, the court allowed the appeal, quashed the conviction and ordered a retrial. The court did not in this case declare the earlier trial a nullity.
Eme v. The State- 1964 (1) ANLR. p. 416 – a decision of this court sitting as a full court is a case which falls under the second category. In this case the two earlier decisions in Oladimeji and Atunde were reviewed and while Atunde was approved, Oladimeji was expressly overruled. The record of proceedings in the Eme case does not show that the appellant, who was the second accused at the trial and who was not represented by counsel, was asked if he had witnesses to examine as required by Section 287 (1) (a) of the Criminal Procedure Act (Cap. 43). The appellant’s appeal was dismissed on the ground that it had not been shown that a substantial miscarriage of justice had occurred. The court arrived at this conclusion after carefully examining the merit of the appellant’s case. Delivering the judgment of the court, Onyeama, JSC., (as he then was) stated thus:- “We think that the construction adopted by the West African Court of Appeal in Atunde v. Police is the correct one and that failure to comply with Section 287(1) (a) of the Criminal Procedure Act, although an irregularity, does not render the trial null; the effect of such failure must depend on the circumstance of the particular case, and the appellate court is at liberty to allow the appeal and order an acquittal or a re-trial, or dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. In the case with which this appeal is concerned, the appellant Arua Eme stated in his defence that he had been away from Port-Harcourt at the time the crime with which he was charged was committed; he had gone to demand payment of a debt from an unnamed person and it was while he was returning from this debtor’s house to Port-Harcourt that he was involved in a fight with a group of people; later in the day he was arrested and charged with the offences set out on the information. He said that the debtor, who would, no doubt, be the witness to support his story that he was not in Port-Harcourt at the material time, wrote him a letter and the letter was produced in evidence as Exhibit 19. The appellant did tell the police who this debtor was in his statement – Exhibit 16 – but he added that he did not find this debtor at home; the debtor could not, therefore, say whether the appellant came to his house or not; and as the appellant did not suggest that he saw anybody else who could give relevant evidence on the question, there was no other evidence which the appellant could have added to his defence. The position then is that the appellant had no witness who could have been of any assistance to him and he is in no way prejudiced by the failure to ask him if he had any witnesses to examine. The evidence against the appellant and his confederates was overwhelming and there is no question of a miscarriage of justice. The appeal is dismissed and the conviction and sentence are affirmed.”
Although it is clear from the of the above judgment that the appellant therein did not have legal representation and had not been asked if he had witness to call, the judgment appears to be silent on how the appellant came to give evidence in his own defence within the intendment of Section 287(1) (a). Was the appellant merely called upon to defend himself, or was he put to his election, in which case it would be safe to assume that the three alternatives provided for in the section had been brought to his notice In the Atunde case, the record did at least state that the first accused (sic appellant) “elected” to give sworn evidence.
In Rex v. Joseph Carter – 44 CAR p. 225, a case decided by the Court of Criminal Appeal in England, the court quashed the conviction of an unrepresented prisoner, because the prisoner at the end of his testimony in his defence had not been asked by the judge who tried him if he desired to call any witness in his defence.Learned counsel representing the appellant, Mr. Shola-Rhodes both in his brief and argument before us also relied on our decision in Commissioner of Police v. Prophet Malim Sheriff Kajola 1973 – 1 All NLR Part II at p. 31. In that case the appellant who was tried by a magistrate for assault was convicted. The record of the trial did not show that the learned magistrate had expressly put the three alternatives provided for under Section 287(1) (a) to the appellant who was not represented by counsel. His appeal to the High Court was dismissed. This court in allowing the appeal on a further appeal to it held –
“(1) That Section 287(1) of the Criminal Procedure Act lays a duty upon the court of trial to put the three alternatives open to that accused specifically and also to draw his attention to the provision of Section 288 especially where the accused is either not represented by counsel or is so represented but his counsel is not in court at the material stage of the proceedings; and
(2) that the record of proceedings must show clearly that the requirements of the said provisions have been complied with.”
In this appeal it is common ground that the appellant had been tried on a charge carrying a mandatory sentence of death; it is also common ground that the appellant was not represented by counsel throughout the trial. It seems indeed strange that at that point in time when this trial took place in October, 1977 the tribunal which was presided over by a Judge of the High Court of Lagos State would have deemed it appropriate to go on with the trial without availing the appellant of the services of counsel, the more so as the case of the State was conducted all the way by counsel. No harm would have been done if the tribunal had made a brief note as to the reasons why it was impracticable or indeed impossible to make counsel available for the conduct of the appellant’s case. It must be very rare indeed in the recent history of this country for an accused to stand trial on a capital charge without legal representation. It is all very well to make the services of counsel available to the appellant at the appeal stage of the proceedings as the record shows, but it is even more desirable to do so during the taking of evidence. As could be seen from all the cases to which reference has been made in respect of the application of Section 287 of the Criminal Procedure Law, none of them is a capital charge, as it is the case with which this appeal is concerned.
At the end of the prosecution’s case the tribunal made the following note:- “In this case it is quite clear that the prosecution had not made any prima facie case against the 1st accused. In the circumstances and in the light of our observation above we hold that no prima facie case had been made out against the 1st accused and he is accordingly discharged and acquitted. We however hold that a prima facie case had been made against the 2nd accused and we now call on him for his defence. Further hearing adjourned to 9/3/77. The 2nd accused is hereby remanded at Maximum Security Prison, Kirikiri.”On the date to which the case was adjourned, the record merely shows that the appellant was sworn on the koran and thereafter proceeded to give his evidence in English.It seems to me from the provision of Section 287(1) (a) of the Criminal Procedure Law that once a court rules that an accused person standing trial has a case to answer, the court is not obliged to call upon him for his defence as was done in this case. As I had indicated earlier on in this judgment, the fact that an accused person is permitted to give evidence in his own defence is a matter of recent history even in England. Here in Nigeria, the provisions of our Criminal Procedure Act are intended to ensure that every accused person standing trial in our courts is not only afforded an opportunity of testifying in his own defence, but of having generally a free and fair trial.
In the Eme case (supra), this court stated thus:- “The aim of Section 287(1) (a) is to ensure that a defendant shall have an opportunity of making his defence; he does make it if he calls his witnesses; ….”
In my view, the fairness of a trial cannot be entirely predicated on the fact that an accused person was afforded an opportunity to testify. It may well go beyond this – and this is why Section 287 offers three options. An accused who is being assisted by counsel carries no burden; his counsel has a duty to make one of three choices for him when he is called upon by the court. Counsel does so, bearing in mind the nature of evidence already presented , and on which the court based its ruling that there was a case to answer. This is why the language of Section 287 (1) (b) is explicit; it speaks of the legal practitioner being called upon to proceed with the defence. The procedure adopted by the tribunal and indeed the language used by it would appear to be apt in a case where there was legal representation. Or put differently, where there is absence of legal representation and the record reads that the accused elected to give sworn evidence, then it may be assumed that the requirements of the section were brought to his notice.The printed record shows that the tribunal in this case began to take evidence on 22nd February, 1977. As at that date, these proceedings were governed by the Robbery and Firearms Tribunal (Procedure) Rules, 1975, made under the Robbery and Firearms (Special Provisions) Decree 1970 (No. 47 of 1970). See Legal Notice No. 56 of 1975. The said rules which came into force on 1st September, 1975 provide inter alia as follows:-
“Rule 5 – Where an accused charged with an offence punishable with death is not defended by a legal practitioner the Tribunal Shall Assign a Legal Practitioner for his defence. (emphasis mine).
Rule 18 – Where these rules contain no provision in respect of any matter relating to or connected with the trial of offences under the Decree the provisions of the Criminal Procedure Act shall with such modifications as circumstances may require, apply in respect of such matter to the same extent as they apply to the trial of offences generally.” (Emphasis mine).
As I had stated earlier in this judgment, learned counsel representing the Lagos State, Alhaji Olugbami, made two concessions before the Court of Appeal, namely:-
(a) that the provisions of Section 287 (1) (a) (i)-(iii) had not been complied with; and
(b) that the Criminal Procedure Law applies by virtue of the Robbery and Firearms Tribunal (Procedure) Rules published as Legal Notice 56 of 1975.
In Odidika & Anor. v. The State – 1977 2 S.C. p. 21 and Okosun v. The State – The Law Reports of Nigeria Vol. 2 at P.314, this court had occasion to rule that the Criminal Procedure Law applies to proceedings in a Robbery and Firearms Tribunal by virtue of the Robbery and Firearms Tribunal (Procedure) Rules 1975 (Legal Notice No. 56 of 1975).In view of the undisputed non-compliance with the provisions of Section 287(1) (a) (i)-(iii) of the Criminal Procedure Law, coupled with the fact that the appellant was neither defended by counsel nor had one assigned for his defence by the tribunal as stipulated under Rule 5 of the Robbery and Firearms Tribunal (Procedure) Rules, 1975, I was not in any doubt that the appellant in this case could not be said to have had a fair trial. Mr. Adetosoye, the Director of Public Prosecutions, Lagos State, with commendable candour stated that he could not support this conviction. We could not agree more with him. It was for the foregoing reasons that we allowed the appeal, reversed the decision of the Court of Appeal dated 24th April, 1980 and quashed the conviction of the Tribunal dated 23rd March, 1977. In substitution therefore we ordered that the appellant be discharged and acquitted.
U. UDOMA, J.S.C.: I have had the advantage of reading in draft the reasons for the judgment of this court of 22nd October, 1981 just delivered by my Lord, Irikefe, JSC. In that judgment, this court had allowed the appeal of the appellant, set aside his conviction which had been affirmed by the Federal Court of Appeal, and acquitted and discharged him.I am to observe by way of emphasis that this court was impelled to reach that decision because the court had concluded that in the peculiar circumstances of the case, the appellant could not be said to have had a fair trial for two reasons:
In the first place, the appellant having been charged with robbery punishable with death, on conviction, under Section 1(2) (b) of the Robbery and Firearm (Special Provisions) Act, 1970, as amended by Act No. 48 of 1971 and Act No. 29 of 1974 was entitled by law to be defended by a Legal Practitioner assigned by the Tribunal to defend him in terms of the provisions of Rule 5 of the Robbery and Fire-arm Tribunal (Procedure) Rules, 1975.
The Rule reads as follows:
“5 Where an accused charged with an offence punishable with death is not defended by Legal Practitioner, the Tribunal shall assign a Legal Practitioner for his defence”.
An examination of the record of proceedings disclosed that throughout the whole of the trial of the appellant and another person who was later discharged at the close of the case for the prosecution, the appellant had defended himself in person. The Tribunal had failed in its duty to assign a Legal Practitioner to defend him. Indeed no Legal Practitioner defended the appellant even though the prosecution was conducted by a State Counsel and the Tribunal was presided over by a High Court Judge (Gomes, J). Under the Rule, quoted above, it was hte bounden duty of the Tribunal to see to it that the appellant was defended by a Legal Practitioner assigned by the Tribunal for that purpose. That duty, the Tribunal had failed to discharge. By reason of that failure, the appellant had to defend himself personally the best he could. The result was that the appellant was not as effectively defended as he was entitled to, and ought to have been.
There were discrepancies in the evidence of the prosecution to some of which the attention of the Federal Court of Appeal was drawn in the course of the presentation of the appeal in that court. The Federal Court of Appeal did not seem to attach importance to such discrepancies but dismissed them as too minor to deserve any serious analysis. I am of opinion that the Federal Court of Appeal, with respect, was wrong to have done so in the circumstances of this case. For instance, there was unresolved conflict as to the colour and the number of the car which was involved in the incident which took place in the night of 17th May, 1974. Whereas P.W.2, Innocent Onuchukwu, Sergeant of Police No. 4674 gave the number of the car as LAS 7902 and the colour as red, P.W.4 Sunday Kolawole the driver from whom the car was snatched said the car was originally orange in colour but later painted yellow. He gave the number as 7907. P.W.9, Felix Adebayo Akerele an ex-police constable gave the registration number of the car as LSA 9707 but the Tribunal on inspection found that the car was Taxi 228 with registration number LSA 7907. Furthermore, the witnesses were not reasonably properly cross-examined. The alibi raised by the appellant was not destroyed contrary to the opinion of the Federal Court of Appeal because the appellant did not accompany the police to Kano for the purpose of testing the alibi nor did the police report back to him the result of their investigation in this respect.This aspect of the appellant’s case, that is to say, the fact that he was not defended by a Legal Practitioner must be regarded as having introduced an entirely new legal element into the whole of the trial of the appellant and must raise the question as to whether in the circumstances the appellant could be said to have had a reasonably fair trial.In fairness, it should be noted also that the Federal Court of Appeal did not at all give consideration to this aspect of the appellant’s case as it was not pressed before the court. The Federal Court of Appeal appeared, with respect, to have concentrated its attention entirely on the omission to comply with the provisions of Sections 287 and 288 of the Criminal Procedure Law to which I must now turn my attention.
In the second place, the Tribunal failed to comply with the provisions of Sections 287 and 288 of the Criminal Procedure Law of Lagos State. The appellant was thereby deprived of his right of election as to whether or not to give evidence at all and call witnesses; or to make or refuse to make an unsworn statement in the dock. He was merely called for his defence.The cumulative effect of the deliberate breach of the mandatory Rule 5 of the Robbery and Fire-arm Tribunal (Procedure) Rule, 1975, and the non-compliance with the provisions of Section 287 of the Criminal Procedure Law of Lagos State could not but lead a reasonable Tribunal to the conclusion that the appellant did not have a fair trial. It could not therefore be said that there was no failure of justice or that a miscarriage of justice did not occur. Indeed it is impossible to hold that in the peculiar circumstances of this case no miscarriage of justice had been occasioned.The issue raised in the present appeal goes far beyond what was decided by the full court in Arua Eme v. The State (1964) 1 All NLR 416. The deliberate breach of the legal duty of the Tribunal to assign a legal practitioner to defend the appellant naturally introduces an entirely new dimension to whatever injustice may be said to have flowed from the non-compliance with the provisions of Section 287 of Criminal Procedure Law of Lagos State. That takes the present case on appeal out of the confines of the decision in Arua Eme v. The State (supra). It establishes a novel point for which there appears to be no precedent.
K. ESO, J.S.C.: My Lords, I will adopt, with respect, the reasons given in the judgment just read by my learned brother, Irikefe, JSC., the draft of which I had a preview. However, the issue of fair trial which in fact is the core of this appeal cannot be over emphasised. The appellant was not represented by counsel at the trial. This is indeed strange for at this stage of the development of the legal profession in this country, it would be difficult to justify such neglect.
But there, the matter started to go wrong. Unrepresented by counsel as he was, three options in law were open to him –
(1) to give evidence on oath and be cross-examined by the prosecutor;
(2) to give unsworn evidence in which case he would not be cross-examined; and
(3) to decide to say nothing in his defence.
These options are his. He is entitled to them as of right. He could not in the circumstance be called upon for his defence as the Tribunal in this case did. This the Constitution guaranteed him, see Section 22(9) of the Constitution of the Federation, 1963, No.20 which was in force during this trial.There is nothing to show further that the appellant was informed he was at liberty to call witnesses in his defence, unrepresented as he was by counsel. Surely, the appellant did not have a fair trial and for these reasons and the reasons given by learned brother, Irikefe, JSC., the appeal was allowed, the conviction was quashed and he was discharged and acquitted.
A. N. ANIAGOLU, J.S.C.: I was afforded the opportunity, by my learned brother, Irikefe, JSC., of reading in draft the reasons for judgment just delivered by him and I wholly agree with it.I would like to emphasize that it was the 1963 Constitution of Nigeria which was in force in 1976 and 1977 when this case was heard by the Robbery and Firearms Tribunal and that the provisions of its Section 22(9) which read:
“(9) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.”
were in re-affirmation of one of the important principles of fair trial in our country, namely, that an accused person must have complete freedom in the conduct of his case. The element of volition in the said conduct of his defence not only entails that he must understand the options available to him at the close of the prosecution case, but also, that he must be completely at liberty to make his choice of those options.
He could, for example decide to rest his case on the evidence adduced by the prosecution and not give the prosecution an opportunity of eliciting from him, in cross-examination, facts by which the prosecution case could be reinforced. For the Tribunal to rule at the close of the case for the prosecution that:
“We however hold that a prima facie case has been made against the 2nd accused and we call on him for his defence (underlining is mine) was clearly suggestive of a command to the appellant (a layman) that he should give evidence in his own defence – a command which was clearly unconstitutional being in direct violation of the said Section 22 of the 1963 Constitution.When coupled with the fact that after the accused had testified on oath and was cross-examined by State Counsel, the Tribunal did not indicate to him that he could call witnesses, the painful impression was that the Tribunal was rushing itself to a conviction of the accused and was making a quick walk of the procedure.
But justice and convenience are ill apart and a short route is not necessarily less difficult, being sometimes strewn with pikes and thorns.
M. L. UWAIS, J.S.C.: On the 22nd October, 1981 I agreed that this appeal should be allowed and the conviction and sentence of death passed on the appellant be set-aside. It was for the reasons just clearly given by my learned brother, Irikefe, JSC., that I so agreed. I therefore have nothing to add.
Other Citation: (1981) LCN/1815(SC)