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IN THE HIGH COURT OF BENUE STATE

ON MONDAY, THE 24TH DAY OF AUGUST 1970

JD/9C/1970

BETWEEN

THE STATE .................................................. COMPLAINANT

AND

ALHAJI AMINI SOKOTO ................................................... ACCUSED

BEFORE: Jones, Ag. S.P.J.

 

Accused was charged with alternative charges of assisting in disposing of 'stolen property' and 'unlawful possession'. The court found a prima facie case against him on all heads of charge. As part of the defence, his Counsel said that the accused wished to make an unsworn statement from the dock, and not to subject himself to cross-examination by giving evidence as a witness on his own behalf.

 

HELD:

(1)     There is no provision in the Criminal Procedure Code for an accused person to make an unsworn statement from the dock without being subject to cross-examination, in the High Court.

(2)     No other applicable law makes such provision.

(3)     There is no such right from written law.

(4)     To enable the accused to explain his possession of the articles believed stolen or unlawfully obtained, if he wishes, the court will question him as provided in section 235 Criminal Procedure Code.

Application refused.

 

Act referred to:

Criminal Procedure Code, Sections 235; 234(3); 194(3); 162(5).

Evidence Law. Section 159(d)

 

G. Brown-Peterside, for the State.

O. Fiebai, for the Accused.

 

Jones Ag. S.P.J.:-Mr Fiebai for the accused says that accused wishes to make unsworn statement from the dock. Mr Brown-Peterside for the State objects that there is no provision for such an unsworn statement. Mr Fiebai replies that the right is an English common-law right or alternatively a fundamental inherent right. There is no specific provision in the Criminal Procedure Code (C.P.C.) for an accused to make an unsworn statement to the High Court. There are references to a 'statement' by accused in section 234(2 C.P.C. & section 194(3) C.P.C. and mention of a "written statement" put in by accused person in section 162(5) C.P.C. On the other hand section 240 C.P.C. appears to confine statements by an accused to those made in answer to questions by the court under section 235 those made in course of the Defence under 192, i.e. "give evidence on his own behalf" and those made under section 236 which prescribes the conditions under which an accused may "give evidence" (section 236(I)(b) on his own behalf. Oddly enough, section 240 does not mention section 162(5) but perhaps the context explains this. In the Evidence Law at section 159 further provisions are also made concerning an accused giving evidence. Section 159(d) Evidence Law states:-

"Nothing in this section shall affect the right of the person charged to make a statement without being sworn." I take it that in this section "make a statement" is not equated with "being a witness" or "give his evidence" the term used in section 159(c). The Evidence Law then envisages an unsworn statement from the dock as in England and as provided in the Criminal Procedure Act. But does this supplement the Criminal Procedure Code? Section 5(i) C.P.C. reads:-

"All offences under the Penal Code shall be investigated, inquired into and otherwise dealt with according to the provision contained in Criminal Procedure Code."

All three offences here charged are under the Penal Code. It would, I think, be possible to read into section 159(d) Evidence Law the granting of or at least the recognition of the right to make an unsworn statement-such right as is found in section 287(a)(i) Criminal Procedure Act-but I think this would be wrong. Section 159(a) Evidence Law says only that if the right exists-(as in Section 287(a)(i) C.P. Act)"-then Section 159 Evidence Law does not purport to take it away. Nor do I think it can be taken as proof or recognition of an "inherent right".

We are left then with the reference to "his statement to the court" in section 194(3) C.P.C. and "statement if any of the accused" in section 234(2) C.P.C. These I think must be taken as confined to the three occasions for an accused making statement mentioned in section 240 C.P.C. None of these is an unsworn statement from the dock of the type requested here.

I, therefore, conclude that there is no provision in the C.P.C. for an accused in the High Court to make as part of his Defence a statement from the dock unsworn and not subject to cross-examination. Nor is any recourse to English Criminal Procedure allowed by section 35 High Court by the C.P.C. or by any other Law. Finally when a branch of the law is codified all previous provisions whether statutory or common law or "inherent" (except, of course, Constitutional Law provisions) as a general rule cease to have effect unless re-enacted by the codifying Law. This general rule applies here.

I rule then that accused may not make an unsworn statement from the dock. He may give evidence as a witness as provided in sections 236 C.P.C. and 192 C.P.C. and he may answer questions as provided in section 235 C.P.C., and that is all. He may, of course, give unsworn evidence section 230 C.P.C. and from the dock if the court so orders (section 159(c) Evidence Law) but it will still be evidence subject to cross-examination not an unsworn statement not subject to cross-examination which is what accused wants to give now.

However, in view of the fact that in a charge under section 319A Penal Code an accused must be given the chance to explain to the court his possession of the articles suspected to have been stolen or unlawfully, obtained I will put to him under section 235 C.P.C. after caution and if he agrees the question "How do you explain your possession of those three bales of jute bags alleged found in our possession by prosecution witness being part of the bales mentioned in the charge or do you deny possession?"

Application refused.