Search a Keyword!

Search our legal repository for any term from articles, statutes to cases

Paul Yabugbe Vs C.O.P (1992) LLJR-SC

Paul Yabugbe Vs C.O.P (1992)

LawGlobal-Hub Lead Judgment Report

AKPATA, J.S.C

Will a public officer who has committed, a criminal offence in purporting to carry out any public duty be immuned from prosecution if within three months of committing the offence he has not been charged to court What is the meaning of the word “prosecution” within the con of the Public Officers Protection Law These and other questions call for resolution in this judgment.

The appellant, who was, at the time material to this case, 3rd June, 1979, an Assistant Superintendent of Police, was arraigned as the third accused along with two others, first and second accused persons, before the Magistrate’s Court, Oyo on a charge of unlawfully assaulting one Olayiwola Afolabi and causing him harm and thereby committed an offence contrary to and punishable under section 296 of the Criminal Code Cap 28, Volume One, Laws of Western Nigeria 1959.

The facts of the case that led to the arrest and prosecution of the appellant and the first and second accused persons who were Police Constables are these: Olayiwola Afolabi was a Senior Magistrate. On 3/6/79 at about 7.00 p.m, he drove in his car in company of his wife, PW.2, his sister-in-law, PW.3, and two of his children aged between two and four years, to Akesan Market, Oyo. On getting there he parked at a point very close to the grass verge on the right side of the road, not far from the Motor Traffic Division of the Nigerian Police.

His wife and her sister got down and went into the market while PW.1 and his two children remained in the car. About fifteen minutes later the first accused who was in uniform went to PW.1 on the instruction of the third accused the appellant, and requested him to move his car from where it was parked because, according to first accused, it was causing obstruction. PW.1 who was certain from all indications that he was not causing obstruction and that parking there was not prohibited explained to the first accused that he was waiting there for his wife who had gone into the market to buy some food stuffs.

The first accused returned to the Motor Traffic Division and told the appellant of the refusal of PW.1 to remove his car from where it was parked. The appellant who was in mufti personally went to PW.1 and asked him to move from the place. When PW.1 would not move the appellant asked for his vehicle particulars. PW.1 doubted his authority to ask him for his particulars since he was in mufti. It was at this stage the appellant informed PW.1 that he was the police officer in charge of the Motor Traffic Division and sent one of the police constables, to go for his identity card at the Police Station.

Before the constable returned the wife of PW.1 had come out of the market. The appellant would not allow her to enter the car. He indicated he would place the matter a test case. According to the prosecution, the appellant ordered the first and second accused to arrest, beat and put PW.1 in the cell. This order, the first and second accused carried out zealously. PW.1 was kicked and dragged to the police station. He was beaten to a state of semi-coma. His clothes and pants were torn leaving him half-naked.

PW.2, the wife of P.W.1, in dismay went for P.W.5, Mr. Oladosun Gbadegeshin, a lawyer by profession who lived very close to the Motor Traffic Division. P.W.5 arrived to find PW.1 on the floor with only his pants, which was in shreds, on about the same time PW.6, Hamzat Taiwo Ayanlaye, a Civil Servant was attracted to the scene because of the large crowd gathered there. When he found that PW.1 was the victim of the assault he exclaimed in disgust that the police men were inviting trouble for themselves for beating up a magistrate to the point of death. The disclosure by PW.6 that PW.1 was a magistrate had a chilling effect. Calm prevailed. The appellant readily agreed that PW.1 be taken to the Oyo State Hospital where he was attended to by PW.4, Dr. Wahabi Lawal. PW4 testified as to the nature of injuries sustained by PW.1 and the fact that he was on admission for three days. PW.8, Afolabi Fagbile, an Inspector of Police, produced a sketch plan of the scene, Exhibit A.

It was the defence of the accused persons, including the appellant, that when the appellant who was the Divisional Traffic Officer came to the Traffic Once on inspection and observed before he drove into the premises that P.W.1 was causing obstruction he sent the first accused to him to move his car from where it was parked. Not only did P.W.1 refuse to move his vehicle, he also refused to surrender his vehicle particulars. At a stage, according to the defence, P.W.1 grabbed the first accused by his shirt and slapped him. On seeing PW.1 assaulting the first accused, the second accused joined his colleague in effecting the arrest of PW.1.

The defence tendered in evidence three documents, namely: (i) Exhibit N. a letter dated 11th June, 1979, written to the Commissioner of Police by the Chief Registrar, Oyo State, High Court, on the directive of the Chief Judge, drawing the attention of the Commissioner to the report the Chief Judge had received relating to the assault on the person of PW.1. The Commissioner of Police was urged to look into the matter; (ii) Exhibit P. another letter dated 19/6/79, also by the Chief Registrar on the directive of the Chief Judge, disclosing to the Commissioner of Police that a delegation of three members of the Magistrates’ Association of Nigeria met the Chief Judge in respect of the subject matter of Exhibit N. and urged the Commissioner of Police to speed up his investigation into the matter as “any undue delay with regards to this matter may lead to unforeseen and unpleasant circumstances”; (iii) Exhibit Q. which is undated is another letter from the same source to the Commissioner of Police informing him that “since it appears that you are not doing anything to speed up enquiries about the case mentioned above and allow Mr. Afolabi get speedy justice, the Chief Judge of Oyo State will give a free hand to the Magistrates’ Association of Nigeria and Mr. Afolabi, to take any action whatever they deem fit to get appropriate redress for what Mr. Afolabi properly regards as unprovoked assault on him by a policeman.”

It was therefore the defence of the accused persons that the trial Senior Magistrate was disqualified from trying the case he being a member of the Magistrates’ Association of Nigeria and that the maxim nemo judex in causa sua was applicable.

In his judgment the learned trial Senior Magistrate Mr. J.O. Moradeyo came to the conclusion from the totality of the evidence adduced before him. Including the sketch plan Exhibit A, that PW.1 caused no obstruction. He was satisfied that PW.1 was unlawfully assaulted and was caused harm within the meaning of section 296 of the Criminal Code, he was also satisfied that, granted that PW.1 resisted arrest which was not conceded, the force used was more than necessary in effecting the arrest of PW.1 and that there was excess of violence. The learned senior magistrate was a) so of the view that a person who breaches the Road Traffic Law is only “contravened” and not arrested. Only persons who commit any offence under the Criminal Code are arrested.

The learned senior magistrate rejected the submission that the maxim nemo judex in causa sua was applicable to the case as it was not the Magistrates’ Association that was trying the case. Besides, said the senior magistrate, the accused persons opted to be tried by him summarily when the charge was read to them as required by section 304(2) of the Criminal Procedure Act. Each of the accused persons was accordingly found guilty and sentenced to a term of twelve months imprisonment without an option of a fine.

On appeal to the High Court the question of the powers of the police to effect an arrest was fully gone into. Falade, J., the appellate judge, observed thus at page 90 of the record of proceedings:

“One should remember that obstruction of the highway or failure to produce the particulars of one’s vehicle is a trivial or simple offence in which it will not be reasonable to use even the slightest force to prevent it. There are several avenues open to the appellants to arrest the PW.1 if they consider it necessary before they can resort to force. Section 3 of the Criminal Procedure Act is clear on this point. It provides:

See also  Mohammed V. State (2022) LLJR-SC

“In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action:’

The appellants did not do any of the pre-conditions in the above section but instead the 3rd appellant became highly irritated and aggressive and shouted. “Get him (PW.1) arrested, beat him up and put him in cell.” This is more of a jungle order rather than an order in a civilized society. The three appellants, brutal crude and uncouth as they were, pounced on the PW.1 and beat him to a state of coma, tore his dresses to nakedness and glorified in being brutal to a fellow citizen only because they were policemen.”

The High Court also found against the appellant in respect of other issues canvassed including the question as to whether a trial senior magistrate was a judge in his own cause. Falade. J., therefore dismissed the appeal. He however gave each of the accused persons an option of fine of N250.00 on the ground that the appellants were first offenders.

It was only the third accused, the present appellant that was dissatisfied with the judgment of the High Court. He appealed to the Court of Appeal against the judgment of Falade, J. He filed six grounds raising virtually all the issues canvassed in the High Court. The Court of Appeal also resolved all the questions against the appellant. Ogwuegbu J.C.A” in his leading judgment observed in part thus:

“In my view the three letters (Exhibits “N”, “P” & “Q”) represent the approach of one who was out to see that justice took its course and speedily too. By no stretch of the imagination can one import to them the meaning that the Magistrates’ Association of Nigeria had taken a stand and were itching for a pound of flesh.”

The appeal was dismissed.

The appellant who is unrelenting and obviously feels that justice has not been done in the case has now come to this Court raising at least one fresh issue for determination. On 18/10/90 his application for leave to raise new points of law not taken in the Courts below was granted.

Brief of argument was filed on behalf of the appellant: The issues raised therein as arising from the grounds of appeal read:

“(i) Whether the prosecution’s case is maintainable in the light of the fact that the appellant was charged outside the three months period of limitation prescribed by the Public Officers Protection Law, Cap. 106, Laws of Oyo State of Nigeria, 1978.

(ii) What is the effect of a trial for an offence committed under a non-existing Law

(iii) Whether the trial of the appellant could be said to be fair in the light of Exhibits P. and Q.”

The second issue as framed is presumptuous and unacceptable. It amounts to over-simplification of the question in controversy. The real issue is whether the appellant was tried for an offence known to law and whether the charge was brought under a non-existing law, and if so whether in the circumstance the conviction is vitiated. No brief of argument was filed on behalf of the respondent. When, however, the appeal came on for hearing on 23/1/92, Mr. Adepoju, Senior Legal Officer, Ministry of Justice, Oyo State for the respondent, indicated that the respondent’s brief would soon be filed. As this Court was not prepared to grant any adjournment learned counsel was allowed to proffer oral argument on behalf of the respondent.

In respect of the first issue, which appears to me to be the main issue for consideration, Mr. Urowayino, learned counsel for the appellant, referred to the Public Officers Protection Law Cap. 106, Laws of Oyo State of Nigeria 1978, section 2 of which provides thus:

“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the following provisions shall have effect –

(a) the action, prosecution, or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof: Provided that if the action, prosecution or proceedings be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison;

(b) whenever in such action a judgment is obtained by the defendant, it shall carry the right to recover from the plaintiff all the costs which the defendant has properly incurred in defending such action;

(c) when the proceeding is an action for damages, tender of amends before the action was commenced may, in lieu of or in addition to any other defence, be pleaded; if the action was commenced after the tender, or is proceeded with after payment into court of any money in satisfaction of the plaintiff’s claim and the plaintiff does not recover more than the sum tendered or paid, he shall no recover any costs incurred after the tender or payment, and the defendant shall be entitled, as from the time of tender or payment, to all costs which he had properly incurred in defending such action; but this provision shall not affect costs on any injunction in the action;

(d) if in the opinion of the court the plaintiff has not given the defendant a sufficient opportunity of tendering amends before the commencement of the proceeding, the court may award to the defendant all the costs which he has properly incurred in defending the action,”

According to learned counsel by virtue of section 2 of the relevant law the appellant “and his co-accused ought to have been charged to court within three months of the commission of the offence. Failure to charge them to court within the statutory period, he submitted, rendered the trial a nullity and the subsequent conviction void. The appellant, he stressed, was not just a public officer but was also at the material time executing a lawful public duty. In support of his contention learned counsel referred to Egbe v. Alhaji (1990) 3 SCNJ 41; (1990) 1 NWLR (Pt.128)546; Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549; (1985) 5 SC. 50 and Ekeogu v. Aliri (1991) 3 SCNJ 45 at 57, (1991) 3 NWLR (Pt.179) 258, These cases established that where the public officer commits the act complained of and it is connected with and done in pursuance or execution or intended execution of a public duty the law protects him, Any proceedings against him should be commenced within three months from the date of the act complained of.

It was the submission of Mr, Adepoju that section 2 has been judicially interpreted in Egbe v. Alhaji (supra), also reported in (1990) 1 NWLR (Pt.128) 546, According to him the word “prosecution” in section 2 does not relate to a criminal proceeding and that all the cases relied on by Mr. Urowayino relate to civil cases, He pointed out that generally time does not run against the state in respect of criminal offences unless as provided by statute.

In his reply Mr, Urowayino cited the case of the State v. Okpegbor & Anor (1980) 2 NCR, 291, a High Court decision, wherein it was held that section 2 also relates to criminal cases.

This legal issue is of great importance. At common law, there is no time limit for commencing a suit by the Crown (State); and therefore in all cases of treason, felony, misdemeanour, where a time is not limited by statute, a prosecution may be commenced at any length of time after the offence. (See Archbold, 34th Edition, Paragraph 151). For instance, by section 43 of the Criminal Code, a person cannot be tried for treason unless the prosecution is commenced within two years after the offence is committed. Also by section 218 of the Criminal Code, a prosecution for unlawful canal knowledge of a girl under the age of 13 years must be begun within two months after the offence is committed.

Learned counsel for the appellant contended that because of the use of the word “prosecution” in section 2 any criminal prosecution, be it for murder or embezzlement of public funds, shall not lie or be instituted unless it is commenced within three months next after the act. In effect, according to learned counsel, if PW.1 had been killed by the appellant with the assistance of the first and second accused persons in the circumstances of this case, they would go scot-free if the Commissioner of Police or the Director of Public Prosecutions vacillated and the appellant and his co-accused were not arraigned for the offence of murder within three months from 3/6/79.

See also  The Registered Trustees Of The Rosicrucian Order, Amorc (Nigeria) V. Henry O. Awoniyi & Ors (1994) LLJR-SC

Mr. Urowayino strenuously maintained this line of argument because in the case of The State v. Okpegbar & Anor (supra) cited by him, the accused persons who were police men were charged with murder. They were alleged to have killed the deceased while they were on duty on January, 27th 1980. At the trial the accused brought a motion to dismiss the charge in which they contended that the prosecution was barred by section 2(a) of the Public Officers Protection Law Cap. 137 Laws of Bendel State in that they were public officers acting in the execution of their duty and the charge should therefore have been brought within three months of the alleged offence, that is, by April 28th, 1980. In his ruling the trial Judge held that the information was not properly before the court as it had been brought out of time, in that it was filed on May 7th 1980, ten days outside the three months allowed by the Public Officers Protection Law.

It is instructive to note that section 2 talks of “prosecution” and not “criminal prosecution.” The use of the word “prosecution” is not restricted to criminal proceedings. The word used in the legal sense means one of three things: (a) a proceeding by way either of indictment or of information in the criminal courts, in order to put an offender on his trial; or (b) the institution and carrying on of legal proceedings against a person, not necessarily criminal proceedings or (c) the party by whom criminal proceedings are being instituted and carried on. (See Shorter Oxford English Dictionary Volume 2 Third Edition, page 1690).

In my view the word “prosecution” within the con of section 2 means “the institution and carrying on of civil legal proceedings. This is made apparent by subsequent use of the words “plaintiffs” and “defendants” in the explanatory subsections (b), (c) and (d) and the complete absence of the words “prosecution” and “accused” in these subsections. In construing a word in a statute which is capable of having two meanings the court should adopt that construction which will not defeat the intention of the law-maker. (See Mandara v. A-G. of the Federation (1984) 1 SCNLR 311 at pages 326 and 350). It could not have been the intention of the State to shield or protect Public Officers from criminal prosecution for criminal offences committed by them in the guise of performing their official duties by limiting the time to initiate prosecution to only three months.

The side-note to section 2 which is “Actions against public officers” also by implication excludes criminal prosecution. Admittedly side notes or marginal notes to any enactment do not form a part of the enactment. However as stated by this court per Eso, JSC., in the case of Oloyo v. Alegbe (1983) 2 SCNLR 35 at page 57, “though in modem times marginal notes do not generally afford legitimate aid to the construction of a statute, at least it is permissible to consider the general purpose of a section and the mischief at which it is aimed with the marginal notes in mind.” Idigbe, JSC., also in the case of Uwaifo v. A-G Bendel State (1982) 7 SC. 124 at pages 187-188 adopted the words of UpJohn LJ, that “while the marginal note to a section (and I would add, the side and explanatory note to an enactment) cannot control the language used in the section, it is at least permissible to approach – consideration of its general purpose and the mischief at which it is aimed with the note in mind,”

While an individual can be said to have waived his right to institute an action against the public officer by his failure to do so within three months of the act complained of, the Commissioner of Police or the Director of Public Prosecution cannot by his indolence or his tardiness or negligence or deliberate act of default waive a public right to lay a charge or an information against a public officer for a crime committed by him unless statute or the constitution clearly and specifically provides for such a waiver. It cannot be said to be within the contemplation of the law makers to protect public officers against prosecution for crimes they may commit on the pre or otherwise that such crimes were committed in the lawful execution of a public duty. It cannot be. The prosecution of the appellant was proper. The protection provided by section 2 of the Public Officers Protection Law is not available to him.

I now come to the second issue for determination. It is whether the appellant was tried for an offence known to law and whether the charge was brought under a non-existing law, and if so whether in the circumstance the conviction is vitiated, In-resolving this issue a short historical sketch is necessary.

Oyo State was part of the old Western Region of Nigeria. There was the Criminal Code Cap. 28, Volume One Laws of Western Region of Nigeria 1959. In 1976 three states were carved out of the Western Region of Nigeria, namely Oyo, Ogun and Ondo States. Before Oyo State enacted or compiled its own Laws. The Laws of the Western Region of Nigeria were still applicable in that State, Volumes of Laws of Oyo State subsequently replaced the Volumes of the Laws of Western Region. Although known as Laws of Oyo State 1978 there is nothing to indicate when the said 1978 volumes actually saw the light of day and when they came into effect. It is not clear whether they were published in a gazette or as gazettes. This becomes relevant because where an enactment does not provide a commencement date; the date of its publication in a gazette is regarded as the date of commencement.

In submitting that the laws under which the charge was brought was non existent, learned counsel for the appellant relied on Aburime v. The Stale (1978) 4 FCA 55 where the Court of Appeal (Benin Division) held that the appellant therein. Anthony Aburime, who was charged on the 19th day of January, 1977 before Ovie-Whiskey, CJ., and who found him guilty and convicted him for an offence committed on or about the 28th day of August. 1976, but charged under section 28(1)(a) of the Criminal Code Cap. 28 Volume One Laws of Western State of Nigeria 1959, was wrongly convicted and set aside the conviction. The Law under which the appellant was charged was said to be non-existent.

If the state counsel who appeared for the State in the case under reference had intimated the Court of Appeal that although there was at the time of the hearing of the appeal a “1976” Criminal Code Law of Bendel State, it was actually not in circulation until late 1977, if not early 1978.

I do not agree with learned counsel that the conviction of the appellant is null and void. Section 22(10) of the 1963 Constitution was not breached. The section states that no person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law. The offence for which the appellant was convicted is defined and the penalty therefore is prescribed in a written law. The written law at the time of trial was either the 1959 Law of the 1978 Law. The wording of section 355 of the 1978 law is ipsissimi-verbis with that of section 296 of the 1959 Law.

There was no error in stating the offence or the particulars required to be stated in the charge. An offence known to law was disclosed in the charge. It is the offence of a person doing unlawful grievous harm to another. The only particular which appears erroneous, that is granted that the Oyo State Criminal Code law was already in operation at the time the appellant was arraigned, is as to the law on which the charge was based. The appellant was represented by the counsel. Chief Olisa Chukwura, SAN. Neither he nor his counsel was misled. In the case of Oruwari v. The State (1985) 3 NWLR (Pt.l3) 486. Kutigi, JCA, (as he then was) in agreeing with the trial judge, held that the conviction and sentence of the appellant in that case was proper and not unconstitutional in that since the offence committed by the appellant was known to section 98(1)(a) of the Criminal Code Cap.31. Laws of Lagos State, the fact that the charge was brought under section 114(2) of the Criminal Code Cap. 31 Laws of Lagos State which had been repealed did not infringe on section 22(10) of the 1963 Constitution. I agree with him. Admittedly, in that case the correct section of the law was inserted before judgment was delivered. In the case of Commissioner of Police v. Okoyen (1964) 1 All NLR 305 at 307 this Court, per Brett JSC , made the point that “since in the present case the respondent and his counsel were in no way misled and knew what questions were in issue we are satisfied that no substantial miscarriage of justice had taken place.” Admittedly in Okoyen’s case the question of a charge being brought under a wrong section of the law or a non-existing law was not in issue. The case only goes to show that a conviction on a charge which relates to a known offence, but with incomplete pal1iculars can be upheld where the defence was not misled and no substantial miscarriage of justice has taken place.

Section 166 of the Criminal Procedure Act states that no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence of those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission. I will like to sum it up thus: where an offence known to law is disclosed in a charge and the penalty for the offence is prescribed in a written existing law and the charge is erroneously brought under a wrong section of an existing law or under a law which had been repealed or has ceased to exist, and both the accused and his counsel are not misled and no objection is raised to the defective charge, a conviction for the offence disclosed in the charge will not be set aside on appeal if there has been no miscarriage of justice.

See also  Narumal & Sons Nigeria Ltd. V. Niger Benue Company Ltd. (1989) LLJR-SC

The last issue for consideration is whether the trial of the appellant was fair in the light of Exhibits P. and Q. As urged in the trial court and in the Court of Appeal, it has also been submitted before us in favour of the appellant that the trial senior magistrate was a judge in his own cause and was therefore biased or likely to be biased since he was a member of the Magistrates’ Association of Nigeria. By implication it is the contention of the appellant that no magistrate in Nigeria was competent to try him as a result of the letters. Exhibits P. and Q. written by the Chief Registrar of the Oyo State High Court on the directive of the Chief Judge of that State to the Commissioner of Police.

As already pointed out the Commissioner of Police was requested in Exhibit P. to speed up investigation into the matter and warned that undue delay might lead to unforeseen and unpleasant circumstances. The Commissioner of Police was informed that a delegation of three members of the Magistrates’ Association of Nigeria had been to see the Chief Judge. In Exhibit Q. the Commissioner of Police was told that the Magistrates’ Association of Nigeria and PW.1 would take any action they deemed fit to get proper redress since it appeared the Commissioner of Police was doing nothing to speed up enquiries.

The anxiety of the Magistrates’ Association of Nigeria is quite understandable particularly in the light of the submission of counsel for the appellant in relation to the protection given to Public Officers under the Public Officers Protection Law. If the appellant and his subordinates were not tried in lime they would probably be protected by virtue of section 2(a) of the Public Officers Protection Law against any civil action PW.1 would have instituted. As rightly pointed out by Ogwuegbu, J.C.A., the three letters “represent the approach of one who was out to see that justice took its course and speedily too.”

The test to be applied in determining what constitutes bias which can be implied to a court or any tribunal is not actual bias but a real likelihood of bias. As Lord Denning, M.R. explained in Metropolitan Properties v. Lannon (1969) 1 F Q.B.577, and adverted to by this Court in the case of Deduwa v. Okorodudu (1976) 9-10 SC. 329 at pages 348 to 349:

“In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough …. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact. favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘That Judge was biased,”’

Firstly, it must be pointed out that the behaviour or attitude of the trial senior magistrate throughout the proceedings has not been impugned. The appellant has based his allegation of likelihood of bias or lack of fair hearing on the letters Exhibits P. and Q. The question is whether these letters in the circumstances of this case would make right-minded persons to think that the appellant had not received a fair hearing or that the trial magistrate was biased or likely to be biased. It seems to me that on a broad view of the case set against the background of Exhibits P. and Q., the ordinary reasonable man would have the impression that the Commissioner of Police was applying delaying tactics and was trying to shield his men from the search-light of justice. The right-minded person would hail the intervention of the Magistrates’ Association of Nigeria as bringing it home to the Commissioner of Police and as underscoring the fact that no man, including the appellant, is above the law. The mind of the ordinary reasonable man would not be polluted by the fanciful imputation that the trial senior magistrate was likely to be biased in the circumstance.

There has been no suggestion that the appellant and his counsel were not aware of the existence of Exhibits N. and P. when he, the appellant, opted to be tried summarily by the senior magistrate. He would not want to be tried by way of indictment in the High Court. It seems to me that the question of bias was raised to becloud the real issue in controversy. I find no merit in the appeal. It is accordingly dismissed. The decision of the Court of Appeal dismissing the appellant’s appeal to that Court is therefore affirmed.


Other Citation: (1992) LCN/2485(SC)

Leave a Reply

Your email address will not be published. Required fields are marked *