IKOKU V. OLI

• Pages: 137-144

IKOKU V. OLI

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137

The position, therefore, on the 6th May, 1961, when the learned Magistrate

made his ruling was, as far as the appellant was concerned, either a discharge on

the submission of no

prima facie

case, or a ruling that a case was made out against

him, in which case he would be called upon for his defence. As it was, the learned

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Magistrate adopted the former course and he was, with the others, discharged.

On an appeal by the Commissioner of Police against his discharge, it is clear

the appellant could not be in a worse position than he was at the end of the case

against him in the Magistrate's Court. In other words, if it was found that he was

wrongly discharged by the learned Magistrate, it was still open to him to make his

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defence before judgment. Therefore the only course open to the Judge of appeal

would be to send the case back to the learned Magistrate to call the appellant to

make his defence.

Unfortunately, the point was overlooked by the learned Judge of appeal that

the appellant was still entitled to make his defence, nor did his Counsel (another

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Counsel not Mr. Uku argued his appeal before the Judge) call the attention of the

Judge to it.

As we pointed out earlier, the point was never raised before the Judge of ap-

peal. We allowed it to be argued in this Court because it is fundamental that an

accused person should have the benefit of making his defence and we are of the

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view that it is such a fundamental right that the Court should entertain it at any time.

What then should be done? We do not think in the circumstances of this case

that

it

would be appropriate to send the matter back to the learned Magistrate (who

had previously discharged him) to proceed with the trial by calling upon the ap-

pellant for his defence. We think, in the circumstances, the conviction recorded

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against the appellant by the learned Judge of appeal should be quashed.

The appeal is therefore allowed. We direct that the fine of £50, if paid, should

be refunded to the appellant.

Appeal allowed: Conviction

quashed:

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Sentence set aside.

IKOKU V. OLI

35

BENSON IKOKU

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APPELLANT

V

40 ENOCH OLI

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RESPONDENT

SUIT NO. FSC 373/1960

FEDERAL SUPREME COURT

UNSWORTH,



F.J.

TAYLOR,



F.J.

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BAIRAMIAN,



F.J.

30th March, 1962.

Practice and Procedure - Malicious Prosecution - Allegation that the complaint,

the basis of the prosecution was false - No allegation that the complaint was

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false to the knowledge of the defendant - Issues raised by the allegation -

Does not raise issue of commission of crime Criminal Code, Cap 42 section

125 A.