The State V John Babatunde Lopez (1968) LLJR-SC

The State V John Babatunde Lopez (1968)

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LEWIS,J.S.C. 

In this appeal from the decision of Hague Ag. J. in MD/36C1967 in the Makurdi High Court on 28th August, 1967 in which he found the accused guilty of an offence contrary to section 115 (1) of the Penal Code, the point taken by Mr. Thanni on behalf of the appellant is that the learned trial judge failed to comply with sections 268, and 269 of the Criminal Procedure Code which read as follows-

“268 (1) The judgment in every trial in a court shall be in writing and shall be pronounced, and the substance of it explained in a language under-stood by the accused in open court either on the day on which the hearing terminates or at some subsequent time of which due notice shall be given.

(2) If the accused is in custody he shall be brought up to hear judgment delivered; if he is in custody he shall be required to attend to hear judgment delivered; If he is not in custody he shall be required to attend to hear judgment delivered unless his presence is dispensed with by the court.

(3) No judgment delivered by any court shall be deemed to be invalid by reason only of the absence of any party or his counsel on the day or from the place notified for the delivery thereof, or of any omission to serve or defect in service on the parties or their counsel or any of them of the notice of such day and place.

269.(1) Every judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed or sealed by the court at the time of pronouncing it.

(2) If the judgment is a judgment of conviction ft shall specify the offence of which and the section of the Penal Code or other law under which the accused is convicted and the punishment to which he is sentenced.

(3) If the judgment is a judgment of an acquittal it shall state the offence of which the accused is acquitted and direct that he be set at liberty.”

in that he gave no judgment in writing as the record reads:-

“Oral judgment delivered. Conviction as charged.”

It is clear that not only must the judgment be written but ft must also contain the matters laid down in section 269 and this was in no way done here. Indeed the Federal Supreme Court had cause to deal with section 245 of the Criminal Procedure Ordinance, which 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 a 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 thereon and where necessary his reasons for such decision and delivers an oral judgment, or

(b) records such information in a prescribed form”., and which section appears to us to be the equivalent provision in what is now the Criminal Procedure Act to sections 268 and 269 of the Criminal Procedure Code, in R. v. Fadina 3 F.S.C. 11. In that case however the judgment concluded with the words:-

“In the circumstances were are not in a position to say that there has been no miscarriage of justice, and this appeal will be allowed. As we were informed by counsel on either side that the appellant has already served his sentence, no useful purpose will be served in remitting the case for trial.”

Mr. Thanni for the appellant argued before us that in the present case the trial was a nullity because of the failure to comply with the requirements of sections 268 and 269 of the Criminal Procedure Code, but when we pointed out to him that assuming that was so, the effect would be that his client would be liable to a new trial at the discretion of the prosecution, Mr. Thanni then argued that having regard to the principles enunciated in Abodundu and Others v. The Queen 4 F.S.C. 70 we should not order a retrial, even If the court considered that it had the power to do so, which in our view it has as the passage we have quoted from R. v. Fadina (supra) clearly shows.

He submitted that it would be oppressive and an Injustice to the accused to render him liable to a retrial as he had been under interdiction since 7th January, 1967. He further submitted that the appellant had paid the fine of £100 which had been imposed on him. He craved in aid the decision in R. v. Fadina (supra) where no retrial was ordered, and also the case of R. v. Gee (1936) 25 Cr. App. R. 198 where at page 203 the Court of Appeal in England said:-

“The result is that there has been what is sometimes called a mistrial, though it would be more accurate to say that there had been no trial at all. Under the decision in Crane v. Director of Public Prosecutions (15 Cr. App. R. 183; (1921) 2 A.C. 299) this court had power to order that a proper trial should take place, and in that case the proceedings would recommence from the point where they broke down. This court also has power in such circumstances, and, has acted on it on several occasions in cases where it was held that the interests of justice so required, to quash the conviction and allow an appellant to be discharged. In all the circumstances of the present case the court is of the opinion that that is the proper order to make. The appellants have been in custody for about three months before trial; they were then held to bail for three months, and have been nearly two months more in custody since conviction. If the court were to order that the proceedings should begin de novo, the appellants would have to go back before the magistrates and be committed again to quarter sessions, which may not be held for sometime, and that would be, in the circumstances, oppressive”.

In Gee the appellant had in fact been in custody for some 5 months and in Fadina the appellant had served a sentence of 9 months imprisonment so that in our view these cases are not on all fours with the present appeal where apart from one day in custody the appellant only paid a fine, so that if we allow this appeal, the fine would have to be refunded. We do not consider that in the circumstances it would be oppressive to order a retrial.

Mr. Thanni asked us to consider the case as a whole including the evidence of the defendant’s witnesses which the learned trial judge rejected, but in our view, it is not for this court but for the court of trial to determine who should be believed, provided there is a substantial case, If believed, made out against him.

We accordingly allow the appeal, quash the conviction and order that the sentence and order of the High Court be set aside and that the case be retried before another judge of the High Court of Benue-Plateau State. We further order that the £100 fine pail by the appellant be refunded.


Other Citation: (1968) LCN/1574(SC)

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