ADEWALE ADISA (APPELLANT)
INSPECTOR-GENERAL OF POLICE (RESPONDENT)
(1964) All N.L.R. 536
Division: High Court, Lagos
Date of Judgment: 2nd November, 1964
Case Number: LD/34CA/64
Before: Taylor, C.J.
The appellant appeared before the magistrate on a charge containing two counts viz.; (count 1) breaking and entering into a shop with intent to commit a felony therein contra section 413 of the Criminal Code, (count 2) stealing two pairs of woollen trousers property of Godwin Ololo contra section 390 of the Criminal Code. The appellant was convicted on the count of stealing but found not guilty on the first count on a technical point.
At the trial, the evidence of the investigating police officer was found to support the case of the appellant; the locus in quo was then visited by the magistrate without inviting the investigating police officer to the scene and no evidence was taken thereafter on oath as to what happened at the scene; the magistrate, however made use of what took place at the scene in believing the evidence against the appellant and rejecting the defence and the evidence of the investigating police officer in support thereof.
The appellant then appealed against the conviction and the point is whether the appellant is prejudiced by the irregular procedure adopted by the court below to the extent that there is a miscarriage of justice.
On a full consideration of the whole case on appeal, and the evidence that the appellant was, on the evidence accepted by the chief magistrate, caught in the shop with the stolen property in his possession, no miscarriage of justice has been occasioned and the appeal against conviction ought to be dismissed.
Appeal dismissed: Conviction affirmed.
Case referred to:-
Rex v. Albert Dogbe, 12 W. A. C. A. 184.
Act referred to:-
Criminal Code Cap. 42, sections 390, 413 and 414.
Taylor, C.J. of Lagos:- The appellant was charged on two counts with the offence of breaking and entering into a shop with intent to commit a felony therein contrary to section 413 of the Criminal Code and on the second count with stealing two pairs of woollen trousers the property of Godwin Ololo, contrary to section 390 of the Criminal Code.
The appellant was convicted on the second count by the learned Chief Magistrate and found not guilty on the first count on a technical point in that the appropriate section was section 414 and not 413 of the Criminal Code. He has appealed against his conviction, and has argued his appeal himself. The substance of his arguments amounted to this:
(1) Since I have been acquitted on count one I cannot be convicted on count two for I cannot steal in the shop if I have not broken into it.
(2) The complainant was his bitter enemy and all the witnesses called for the prosecution were in some way related to the complainant with the result that the prosecution had not discharged the onus placed on it.
The learned Chief Magistrate accepted the evidence of the 1st and 2nd prosecution witnesses, rejected the defence and the evidence of the Police Constable who investigated the offence, i.e. PW4, and who in his evidence deposed that the shop could not have been broken into from the inside. The point however was not whether it could have been broken into from the inside but from the outside. The only point that worried me a little about the case was whether the learned Chief Magistrate was justified in holding that:-
"I have been to the shop in company of the 1st and 2nd prosecution witnesses and the accused with others and from the way the shop was demonstrated to be locked it was quite apparent that anyone could pass a hand from outside through the gap to uplift the bolt of the door. I believe the evidence of the 1st and 2nd prosecution witnesses. I do not believe the evidence of the accused."
It does not appear on record that PW4 whose evidence supported the appellant's case was invited to the scene of the crime for the record of the learned Chief Magistrate of the visit to the locus reads thus inter alia:-
"Sittings resumed after a visit to the locus in quo with accused and his Counsel present were the police prosecutor and the 1st and 2nd prosecution witnesses."
In the case of Rex v. Albert Dogbe 12 WACA 184 at 185 Lucie Smith, C.J., delivering the Judgment of the court said inter alia that:-
"The practice, and to our minds an excellent practice, in several Colonies and we believe in England, is for the court accompanied by the accused and his Advocate together with the Advocate for the Crown and such witnesses for the prosecution and the defence as may be deemed material to proceed to the locus.
The witnesses there point out such places and things as are material to the case and distances are stepped off or otherwise arrived at. The court then reassembles and the persons who were used at the view are put into the witness box and, on oath, state what part they took in the recent visit to the locus and what they each did. The defence or the Crown, as the case may be, are then given an opportunity of cross examining."
In the present case on appeal, as I have said before, PW4 was not invited to the scene and no evidence was taken on oath as to what took place at the scene either there or when the court resumed its sittings. That the Magistrate made use of what took place at the scene to come to his conclusion in rejecting the evidence of PW4 and accepting the story of PW1 and PW2 as against that of the accused is evident from a passage in his Judgment to which I have earlier drawn attention. The only point for consideration however is whether the appellant was prejudiced by the procedure adopted by the court below and whether there was a miscarriage of justice.
On a full consideration of the whole case on appeal, and the evidence that the appellant was, on the evidence accepted by the Chief Magistrate, caught in the shop with the stolen property in his possession, I am of the view that no miscarriage of justice has been occasioned and I accordingly dismiss the appeal.