Napoleon Osayande & Anor V. The State (1985)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, J.S.C.

On the 17th day of January, 1985 after hearing arguments of counsel, I dismissed the appeal and reserved my reasons till today. I now proceed to give them. The proceedings in this matter originated in the Chief Magistrate’s Court, Benin City. There, the two appellants were charged with the offences of

(1) wilful and unlawful damage contrary to section 451 of the Criminal Code Cap 48 Vol. 2 Laws of Bendel State of Nigeria.

(2) Stealing contrary to section 390 of the Criminal Code Cap 48 Vol. H 2 Laws of Bendel State of Nigeria 1976.

One Edomwonyi Eguakun was charged and tried along with them. He was discharged and acquitted on both counts but the two appellants were convicted on count 1 the count charging wilful and unlawful damage and each was sentenced to 1 year imprisonment with hard labour and acquitted and discharged on count 2.

The appellants were dissatisfied and appealed to the High Court. Indeed, oral notice of appeal was given on the 5th March, 1979 immediately the convictions and sentences were pronounced. It was recorded immediately by the learned trial Chief Magistrate who then proceeded without delay to make the order specifying the conditions of appeal. On the same day, the memorandum of the grounds of appeal was filed. Only one ground was stated. It is the omnibus ground and reads

“that the decision of the learned trial Magistrate is wrong, unreasonable and cannot be supported having regard to the evidence.” Before the hearing of the appeal, the 1st appellant sought in the High Court and obtained leave to file and argue additional grounds of appeal. Seven additional grounds of appeal were filed. Of the seven additional grounds of appeal filed, only ground 4 which reads that:

“the learned Chief Magistrate erred in law in delivering a written judgment not signed and dated at the time of pronouncing it contrary to section 245 of the Criminal procedure Law.”

was argued by the 1st appellant’s counsel in the High Court. The 2nd appellant also sought and obtained leave to argue 7 additional grounds of appeal. Thereafter, he sought and obtained leave to file and argue a further ground of appeal.

Of all the grounds and additional grounds of appeal filed by the 2nd appellant, only the further ground of appeal which reads:

“that the learned trial Chief Magistrate erred in law when he failed to sign the judgment delivered on the 5th March, 1979.”

was also argued before the High Court by the 2nd appellant’s counsel.

The appeal was argued before Moje Bare, J. who ordered the criminal records book of the Chief Magistrate to be produced before him for inspection. This was done before he heard arguments from counsel on the 18th day of February, 1982. The learned judge then minuted in his Record Rook a, follows:

“Court: The Record Book was produced and inspected by me and found to have been signed by the trial Magistrate at the end of the court proceedings of the day after granting conditions of “appeal vide Fols. 169 and Fols. 213-218 Vol. 632 thereof.”

Mr. Ihensekhien says the judgment was not signed m accordance with section 245 Criminal Procedure Law Cap 49 Bendel State Submits that the portion of the judgment to be signed as envisaged by section 245 Criminal Procedure Law does not include Allocutus, sentence and Notice of Appeal and conditions a Appeal. What the law contemplates is that the trial Magistrate should give his reasons for the judgment, then convict or acquire and then sign. After signing, the Magistrate shall proceed to allocutus and sentence etc. and sign again………………………………. Mr. Ehiemua Senior State Counsel submits that the learned trial Chief Magistrate acted in accordance with section 245 of the Criminal Procedure Law. Judgment to be in writing and signed.

In this case, the trial Magistrate was still silting when he proceeded to give conditions of appeal. Submit that by doing so have trial Magistrate signed……….” Would ask that if the court holds the view that the signing by the trial Magistrates after granting conditions of appeal vitiates the judgment, a retrial be ordered….”

After hearing arguments on the ground of appeal, the appeal was adjourned for judgment and on the 10th of March, 1982 judgment upholding the ground of appeal was delivered.

In the concluding paragraph the learned judge observed:

“The authority of Sylvanus Unakalamba v. Commissioner of Police 3 FSC. 7 and that of the The Queen v. Fadina 3 FSC. 11 and Samson Okoruwa & Anor. v. The State (1975) 5 SC. 23 cited by 1st appellant’s counsel conclude this matter. In the circumstances, there will be no reason to hear arguments on the other grounds of appeal filed. The appeal is allowed and the purported conviction and sentence on each of the appellants in charge No.MB/511C178 dated 5th March, 1979 is hereby set aside. The accused appellants are therefore entitled to be and are hereby discharged and acquitted.”

The prosecution being dissatisfied, appealed to the Federal Court of Appeal (as the Court of Appeal was then called) on four grounds of errors in law. Of the four grounds of appeal, I find grounds 2 and 3 of great relevance in this judgment. They read:

“2. The learned appellate judge erred in law when he held that the judgment was not signed when pages 27 line 1 to page 27 lines 1 to 6 as a whole was a judgment duly signed and dated at page 27 lines 4-6.

3. The learned appellate judge erred in law in discharging and acquitting the accused respondents on the merits instead of ordering a retrial of the case when the counsel for the complainant, appellant in this appeal asked for a retrial.”

The accused person were satisfied with the judgment and did not appeal or cross-appeal.

After hearing arguments of counsel for the parties, the Court of Appeal allowed the appeal, set aside the judgment of the High Court and restored the judgment of the learned trial Chief Magistrate varying the sentence by giving each accused person an option of payment of a fine of N200.00 in lieu of service of 1 year imprisonment with hard labour.

Ete, JCA. delivering his judgment (concurred in by Okagbue, JCA. and Pepple, JCA.) observed

“It is clear to me that the emphasis here is on the time the signature is appended on the book on which the judgment is recorded and not on what part of the proceedings in the record book. This is the view we adopted in the case of Andrew Obareki v. The State – FCAIB/2/82 (unreported) delivered on 13/7/82 where it is stated as follows:

‘It is a question of fact whether a judgment is signed and dated at the time of pronouncing it. The submission of counsel for the appellants that because some orders appear before the signature, the judgment cannot be said to be signed is a non sequitur………It would no doubt have been neater to sign the judgment separately and sign the orders separately but that is not to say that the signature at the bottom of the page coming after the orders as it does renders the judgment a nullity.’

In my view ground 2 of the grounds of appeal argued succeeds. The appeal is allowed. The judgment of the High Court with the orders made thereunder is set aside. In its place, I restore the judgment of the Chief Magistrate dated 5/3/79. But I would vary the sentence passed on the two respondents.”

The accused persons were given an option of a fine of N200.00 each. They were dissatisfied with this judgment and appealed to this Court. The 1st appellant filed 3 grounds of appeal while the 2nd appellant filed 2 grounds of appeal.

Counsel for the 1st appellant filed and served appellant’s brief of arguments and the Deputy Solicitor-General filed the respondent’s brief of argument. The 2nd appellant filed no brief of argument and was not represented by counsel at the hearing.

The appellant in this appeal formulated the issues arising in this appeal thus:

“From the grounds of appeal filed, there are two issues in the appeal;

(1) the interpretation of section 245 of the Criminal Procedure Law

(2) whether the Court of Appeal was right not to have remitted the case back to the High Court for arguments on the remaining six grounds of appeal in the High Court since only one out of seven grounds of appeal filed was argued at the instance of the learned Senior State counsel for the respondent with the consent of the appellant’s counsel and the approval of the High Court.”

Learned counsel for the appellant then resolved the 1st issue into two questions, viz:

“1. can it be said that a judgment not dated and signed at the time of pronouncing the conviction and sentence was in compliance with the mandatory provision of section 245 of the Criminal Procedure Law of Bendel State which provides inter alia

‘the judge or Magistrate shall record his judgment in writing and every such judgment shall contain a point or points for determination, the decision thereon and the reasons for the decisions and shall be dated and signed by the judge or magistrate at the time of pronouncing it.”

2. was it sufficient compliance with section 245 of the Criminal Procedure Law that the record of proceedings was signed after the unsigned judgment had been pronounced; the counsel for the appellant had given oral notice of appeal and the learned Chief Magistrate had given conditions of appeal and granted provisional bail, dependent on fulfillment of certain stipulated conditions.”

The facts are not in dispute and are as set out above. Learned counsel for the appellant contended that a strict compliance with section 245 – Criminal Procedure Law demands that the signature must appear before the oral notice of appeal given was recorded and that the signature appearing at the end of the order for conditions of appeal does not satisfy the requirement of the law. He relied, for his contention, on the 3 cases he cited before the High Court which are:

(1) Sylvanus Unakalamba v. Commissioner of Police 3 FSC. 7

(2) The Queen v. Timothy Fadina 3 FSC.11: and

(3) Samson Okoruwa and Another v. The State (1975) 5 SC 23 at 28.

He submitted that once the learned Chief Magistrate pronounced his judgment he became functus officio. Mr. Hayble, the learned Deputy Solicitor General, counsel for the respondent, however differed in opinion from Mr. Ihensekhien. Learned counsel for the respondent submitted that the three cases cited by learned counsel for the appellant did not support appellant’s contention and that the conditions of appeal included in the judgment and preceding the signature should be regarded as superfluous. He observed that the three authorities relied on by learned counsel for the appellants are distinguishable on the facts.

The issue for determination in this appeal is one of the proper interpretation of section 245 of the Criminal Procedure Law in the con of the undisputed facts in this appeal. The section in full reads:

“The judge or Magistrate shall record his judgment in writing and every such judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by the judge or magistrate at the time of pronouncing it.

Provided that in the case of magistrate in lieu of writing such judgment, it shall be sufficient compliance under this section if the magistrate

(a) records briefly in the book his decision and where necessary his reasons for such decision and delivers an oral judgment: or

(b) records such information in a prescribed form.”

It would appear that learned counsel for the appellant confined his arguments to the first part of the section carefully avoiding any reference to the proviso. Without reading the whole section, the real intention of the legislature cannot be gathered from the 1st part in so far as the magistrates are concerned. The Rule of Construction Exposition Ex Visceribus Actus – must be invoked and the true construction given must be within the four corners of the Act. To arrive at any particular phrase in the statute the particular phrase is not to be viewed detached from its con. It is to be viewed in connection with its whole con.

On a close reading of the whole section. The proper interpretation would be that once the magistrate records briefly in the book his decision and delivers an oral judgment, he has complied with the section 245 of the Criminal Procedure Law. It was not disputed that the chief magistrate pronounced his judgment. The contention would appear to be that because his signature did not appear immediately after conviction and sentence, it was oral. If it was an oral judgment and as the record book shows the decision and the reasons for the decision, there is, in my view, evidence of full compliance with the provision of section 245 of the Criminal Procedure Law.

The case of Sylvanus Unakalamba v. Commissioner of Police (supra), in my view, does not support the contention of the appellant. The Federal Supreme Court in that case was issuing a warning against the practice which appeared to be growing among magistrates of delivering judgment and subsequently filing reasons as was done in that case. Nageon de Lestang, Ag. FCJ. (delivering the judgment of the Court) after stating that the practice was contrary to section 245 of the Criminal Procedure Ordinance which is in pari materia with section 245, Criminal Procedure Law Cap 49 Vol. 2 Laws of Bendel State and citing the provisions of the said section said:

“The language of the section is quite clear. As far as judges of the High Courts are concerned, their judgments must be reduced into writing and dated before they are pronounced. The same rule also applies to magistrates, but in their case, they may deliver an oral judgment provided they have complied with paragraph (a) and paragraph (b). No form having been prescribed under paragraph (b) Magistrates must pursue the ordinary course under paragraph (a).

Once a judge or a magistrate has pronounced judgment, he is functus officio and any judgment reduced into writing or any reasons given subsequently are of no effect and cannot be looked at by the Court of Appeal.”

This cannot be an authority for the appellant’s contention that the judgment is ‘illegal and a nullity because the signature was appended after the conditions of appeal were ordered at the time of pronouncing the judgment. To be functus officio, a judgment must have been pronounced.

This case was followed and the obiter dictum affirmed in The Queen v. Timothy Fadina (supra) by the Federal Supreme Court. However, this case originated in the High Court, Lagos “the appellant was tried by the judge who, at the conclusion of the trial, delivered a judgment based on notes made by him during the trial, which notes did not form part of the record of appeal. Thereafter, he wrote the judgment which formed part of the record of appeal”. The Federal Supreme court held that:

“once a judge had pronounced judgment, he is functus officio, and any judgment reduced into writing thereafter cannot be looked at by the court.”

Ademola, FCJ., delivering the judgment of the Federal Supreme Court said at page 12:

“It is with the procedure adopted by the learned judge, at the conclusion of the trial that we feel somewhat concerned. Section 245 Criminal Procedure ordinance dealing with conclusion reads as follows:

“………………………………………

……………………………………….

It seems clear from the provisions of this section that a judge, besides pronouncing his judgment, must record it in writing and must sign it at the time of pronouncing it. It follows that the judge must record his judgment before or at the time of pronouncing it, he cannot record it afterwards The provisions of section 245 of the Criminal Procedure Ordinance are not in our view mere technicalities. An accused person is entitled to have his case fully considered on the point or points for determination, also to the decisions thereon and the reasons for such decisions. He is entitled to hear that judgment. That, in our view, is the intention and meaning of section 245.”

The case of Samson Okoruwa & Anor. v. The State (1975) 5 SC. 23 originated at the High court, Ubiaja. The two accused persons were tried by Omo Eboh, J. and instead of recording his judgment in writing and pronouncing it and signing at the time of pronouncement. he dictated the judgment. This was very clear from the record of proceedings and Elias, CJN. delivering the judgment said:

“Learned counsel drew our attention to the following portion of the Record of appeal at p.19:

‘Judgment is dictated in court. The 1st accused is sentenced to 5 years imprisonment with hard labour on the 1st count, no sentence is given on the 2nd count. The 2nd accused is sentenced to 5 years imprisonment with hard labour on 1st count and no sentence is given on the 2nd count.

Sgd. J. Omo-Eboh

Judge 14/8/73″

He also contrasted this passage with the following recorded by the learned trial judge as part of the judgment which he apparently wrote the same day:

‘None of the two accused is desirous of an option of a fine, 1st and 2nd accused persons are sentenced to 5 years imprisonment with hard labour each on the 1st count of manslaughter. No sentence is pronounced on the 2nd count of negligent driving in respect of both accused persons.

Sgd. J. Omo Eboh

Judge 14/8/73”

Learned counsel submitted, and we agree with him, that the learned trial judge was clearly in error in having ‘dictated’ his judgment in court as there is no provision in the law for a high court judge to dictate his judgment in court. Section 245 of the Criminal Procedure Act (Cap. 43) of the 1958 edition of the Laws of the Federation “[which is similar in terms to section 245 Criminal Procedure Law of the Laws of Bendel State 1976]” is against such a proceeding in its provision……..is therefore clear that a Magistrate but not a judge, may give an oral judgment and record his conclusions briefly. This is because of the large number of cases which the magistrate has to handle often by summary procedure. A judge has no similar excuse.”

It is therefore crystal clear that the contention of learned counsel for the appellant can find no solid support in the three cases. Rather, the competence of the Magistrate to deliver oral judgment under the statute, not in breach but Incompliance, has been emphasised by them. It is only in relation to a Judge of the High Court that strict compliance with the letter of the section is demanded.

I have examined the case of Andrew Obareki v. The State (supra) and find the decision amply supports the respondent’s contention. The important question is whether the signature of the Magistrate appearing at the end of the judgment and order for conditions of appeal recorded at the time of pronouncing the judgment is intended for the judgment or only for the order.

By the nature of the procedure in the Magistrates Court for giving oral notice of appeal, the step is so proximate to and linked with the judgment delivered to be totally severable from the judgment. This is more so when the impatience of counsel on hearing the conviction drove him to give notice of appeal before the Magistrate appended his signature.

I agree with the observation of Okagbue, JCA. in Andrew Obareki v. The State that it is neater for the Magistrate to sign the judgment separately and the order for conditions of appeal separately. If counsel will give a Magistrate time to conclude the delivery of his judgment and sign it before giving his oral notice of appeal, I am sure the Magistrate will be enabled to produce a judgment signed by him before proceeding to order conditions of appeal.

It is in the realization of the pressure the Magistrate as a court of summary jurisdiction is subjected to that the section makes provision for him to deliver oral judgment. In this instant appeal, there is no doubt whatever that the signature of the Magistrate not appearing at the bottom of the judgment but after the order for conditions of appeal satisfies the provision of section 245 of the Criminal Procedure Law and I so hold.

It was for the above reasons that I dismissed the appeal and affirmed the decision of the Court of Appeal.

A. N. ANIAGOLU, J.S.C.: I had read the draft of the ‘Reasons for Judgment’ just delivered by my learned brother, Obaseki, J.S.C., and I am in complete agreement with those reasons and adopt them as mine.

Realizing the volume and the variety of cases that a Magistrate has to contend with in one single day, and taking into account the fact that he has to undergo the tedium of writing down in long hand all the proceedings concerning those cases without any assistance, as at present obtains, of any scientific or mechanical device in transcribing his records or recording the evidence, the law (Section 245 of the Criminal Procedure Law of Bendel State) in its wisdom, has made allowance for a Magistrate, in exercise of his summary jurisdiction, not necessarily to follow the minutia of the first segment of the said S.245, as a Judge of the High Court J a superior Court of record ‘would mandatorily be expected to follow, but to deliver oral judgment and in addition, record briefly in his Record Book his decision and, where necessary, his reasons for the decision.

The provisions of s.245 of the Criminal Procedure Law of Bendel State and the indulgence granted therein to Magistrates of delivering oral judgments, are consonant with sound reasoning and common sense, if only to meet the requirement of the Law and Constitution that criminal cases must be heard within a reason letime and disposed of expeditiously.

The view I have taken of the indulgence granted to Magistrates by s.245 of the Criminal Procedure Law of Bendel State is reinforced by the view taken of the identical section 245 in the Criminal Procedure Act, by the West African Court of Appeal in its decision in SALAWU A TUNDE v. COMMISSIONER OF POLICE (1952) 14 W.A.C.A. 171 at 173 where de Comarmond, Ag. C.J., Nigeria, in delivering the judgment of the Court (Bairamian and Johnson. n. agreeing), stated as follows:

“Section 245 provides that the Judge or a Magistrate shall record his judgment in writing and shall set out the point or points for determination. The decision thereon and the reasons therefor. There is, however, a proviso to the effect that in the case of a Magistrate it shall be sufficient compliance with the section if the Magistrate records briefly his decision and where necessary his reasons and delivers an oral judgment, or if, he draws up a formal conviction.

“This proviso nullifies to a large extent the initial provisions of the section, in so far as Magistrates are concerned. The important point about section 245 is that it does not provide that non-compliance with its provisions invalidates a conviction.”

(Italics mine)

It was for the above reasons and the wider reasons given by my learned brother, Obaseki, J.S.C., that I dismissed the appeal on 17th January 1985 and upheld the decision of the Court of Appeal, maintaining as I still do that, contrary to the contention of the Appellants, the provisions of section 245 of the Criminal Procedure Law of Bendel State had not been infringed in this case by the Chief Magistrate, Benin City.

D. O. COKER, J.S.C.: I agree with the reasons for Judgment of Obaseki, J.S.C.

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SC.47/1984