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Rex V. Busari (1938) LJR-WACA

Rex V. Busari (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Manslaughter contra. Section 325 Criminal Code—Summary Trial by Judge of High Court—Medical certificate tendered under section 76 (I) of Criminal Procedure Code—Do the words ” or in any summary trial” at the end of section 76 (1) of Criminal Procedure Ordinance include a summary trial before the High Court?

Held: Question answered in affirmative.

There is no need to set out the facts.

C. N. S. Pollard for Crown.

Respondent not present.

The following case was stated by Graham Paul, S:—

The accused in this case was charged with manslaughter contrary to the Criminal Code, section 325. The charge of manslaughter related to the death of one Ashawande. On the dead body of Ashawande the doctor in charge of the Oshogbo Hospital made a post-mortem examination by dissection and embodied the result of that examination in a report.

  1. A Coroner’s Inquest was held on the dead body of Ashawande. The coroner recorded that Busari stood charged before him with the ” Murder (or Manslaughter) ” of the said Ashawande.

The coroner found only that the death of Ashawande was caused at a certain date and place ” by manslaughter.”

  1. The alleged manslaughter happened on 15th April, 1937. On 14th May, 1937, this Court was advised by the coroner by letter that Busari ” had been committed for trial in the High Court for manslaughter,” and the original record of the proceedings was enclosed. The case came before my predecessor on 17th August, 1937 and was adjourned. I found it on my list on my return from leave in October. It was not till I saw the papers that it was noticed that no order of committal had ever in fact been made. The accused had been in custody since 15th April, 1937, and I did not consider it fair to the accused further to delay his trial by sending the ca& back for further investigation by the Magistrate. I therefore tried it summarily.
  1. In the course of the trial the Assistant Superintendent of Police in Rex the absence of the doctor tendered in evidence the doctor’s report, foundingv.
    upon the Criminal Procedure Ordinance sections 76A and 76B. These Busari. sections were added to the Criminal Procedure Ordinance by the Criminal Procedure (Amendment) Ordinance 1937. That Ordinance came into force Graham on 8th April, 1937.Paul, J.
  2. The terms of these sections are as follows:—
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” 76A. (1) Any document purporting to be a report under the ” hand of the Government Analyst or Assistant Analyst upon ” any matter or thing submitted to him for examination or ” analysis and report, shall be receivable as prima facie ” ‘ evidence of any matter or thing therein contained relating ” to such examination or analysis, for the purposes of any ” preliminary inquiry before a Commissioner of the Supreme

Court or Magistrate in respect of any offence for which the ” offender may be committed for trial, or in any proceeding ” before a coroner, or in any summary trial.

  1. The Court shall, in the absence of evidence to the contrary, ” presume that the signature to any such document is genuine ” and that the person signing it held the office which he ” professed at the time when he signed it.
  2. If, on any such inquiry or proceeding or trial the Govern” ment Analyst or Assistant Analyst is called as an expert
otherwiseexpresslyorders,paybeforethe Government
Analyst or AssistantAnalystshallbe summoned to give

” evidence all the costs which it is estimated may be occasioned ” by calling him.

” 76B. The provisions of the preceding section shall, with the ” necessary modifications, apply in the case of any document ” purporting to be a report by a registered or licensed medical ” practitioner on any person or on any human body or part ” ‘ thereof or other thing examined by him : Provided that ” such report purports to have been written on the same day ” as, or on the day following that on which the examination ” was made by such medical practitioner.”

” 7. I refused to admit the report on the ground that the words ‘ or in summary trial ‘ meant only in any summary trial before a Commissioner of the Supreme Court or Magistrate and did not cover a summary trial before the High Court. The Assistant Superintendent of Police contended that the section did cover summary trials in the High Court.

8. It seemed to me that the effect of accepting the interpretation for which the Crown contended would be to place the High Court in the ridiculously anomalous position of having ad hoc one rule of evidence to observe in summary trials and a different rule in trials on orders of committal. I conceived that this result could not possibly be intended by the legislature and that the section in question should be so interpreted only if no other interpretation were reasonably possible. In my view the interpretation I have suggested in the previous paragraph was reasonably possible and I accordingly gave effect to it.

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9. In coming to that conclusion I had not lost sight of section 30 of the

v.Interpretation Ordinance, but in this case I considered that ” a contrary

Busari.intention ” within the meaning of section 30 did appear for the reasons

I have given in paragraph 8 supra.


Paul, J.10. It must be borne in mind that though in this case it was said that

the doctor in question was not available to give evidence that consideration is not essential to the point I had to decide. If the contention for the Crown is correct then the High Court in a summary trial must admit against an accused a written statement by a doctor upon which the accused has had no opportunity of cross-examining the doctor even if the doctor were available to give evidence at the trial. That seemed to me a most astounding proposition only to be accepted by this Court if it was the inevitable effect of a legislative enactment. In my view it was not an inevitable effect of the sections quoted.

  1. If the Crown contention is correct it of course also applies to section 76C of the Criminal Procedure Ordinance which deals with the Treasurer’s report on any coin or currency or bank note.
  2. As this amending Ordinance has not—so far as I know—been yet the subject of judicial interpretation, and the point raised is important and doubtful, I considered it my duty to accede to the request of the Assistant Superintendent of Police that I should state a case on the point for the opinion of The West African Court of Appeal.
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The foregoing case is therefore respectfully stated by me. SIGNED this 12th day of November, 1937.


The following joint opinion was delivered :—


In this case stated by Graham Paul, Judge, sitting as a High Court Judge in the Ibadan Judicial Division the learned Judge has not formulated in terms the question to which he asks for an answer, but it is clear from the case that it is as follows : —

 ” Do the words ” or in any summary trial ‘-‘ at the end of section 76A (1) of the Criminal Procedure Ordinance include a summary trial before the High Court.”

In the opinion of the Court the answer to this question is in the affirmative for the reason that the words ” or in any summary trial ” must be given their ordinary meaning and there is no reason to exclude summary trials in the High Court. In giving this opinion, whilst agreeing that the manner in which certain matter may be proved in a summary trial in the High Court is

different from that required when the trial is after commitment, we do not share the apprehensions of the learned Judge, because we read the words ” shall be receivable ” in section 76A (1) of the Criminal Procedure Ordinance as equivalent to ” may be received anti not to ” ‘must be received ” or shall be received.” It is thus open to the Judge, when the evidence is tendered, to receive it, or, eii her of his own initiative or on the application of the other side, to reject it on the ground that better evidence, being available, ought to be led, or for any other adequate reason.

The question above formulated is answered in the affirmative.

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