ARUA EME V. THE STATE

• Pages: 310-314

310

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NIGERIAN SUPREME COURT CASES

[1964] N.S.C.C.

For these reasons we are of the view that the award of general damages can-

not be upheld and it is set aside. In fairness to the trial judge we should add that

the admissibility of the claim for general damages was never challenged in the

High Court and we repeat that the defendant as well as the judge ought always to

consider whether any particular claim comes within the accepted rules for the

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award of damages. If a defendant fails to do this he can hardly be surprised if the

judge grants what is claimed, and the defendants' failure in this case must be taken

into consideration in the assessment of costs.

In the result the award of damages is reduced from £600 to £50. The costs

awarded to the respondent in the High Court are reduced from sixty guineas to fif-

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teen guineas and the appellants are awarded part of their costs in this Court, which

we access at fifty-five guineas, including out-of-pocket expenses of £53-18s-Od.

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ARUA EME V. THE STATE

ARUA EME

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APPELLANT

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20

V

THE STATE

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RESPONDENT

SUIT NO. SC 37

4

/

1

964

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

BR ETT,

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J.S.C.

BAIRAMIAN,

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J.S.C.

ONYEAMA,

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J.S.C.

23rd December, 1964

Legislation - Criminal Procedure Act, s.287(1)(a) and s.288.

Criminal Law - Trial - Judge's failure to ask defendant without counsel if he

has witnesses - Effect depends on circumstances of case.

Statutes - Interpretation - Proviso - Cannot be used to import a provision into

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enacting clause. Saving clause when a proviso.

ISSUES:

1.

What is the effect of a Judge's failure to ask an unrepresented defendant if he

had any witnesses as required by s. 287(1)(a) of the Criminal Procedure Act.

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2.

What is the purpose of a proviso in an enacting clause.

FACTS:

Briefly put, s.287(1)(a) provides that when a defendant who has no counsel is

called upon for his defence the court shall inform him that he may (1) make an un-

sworn statement (2) give evidence on oath and be examined, or (3) say nothing at

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all, and the court shall also ask him whether he has witnesses and hear him and

his witnesses. Section 288 states that failure to comply with those requirements

does not per

se

vitiate the trial if the court called on the defendant for his defence

and asked him if he had witnesses and heard him and his witnesses (text in judg-

ment).

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The trial Judge did not ask the defendant, who was without counsel, if he had

witnesses; the defendant stated to the trial Judge that he was elsewhere, having

gone to collect a debt. In his statement to the police he had said that he did not

find the debtor at home, and he did not suggest that he saw anybody who could

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