OBAKPOLOR V. THE STATE

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OBAKPOLOR V. THE STATE

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OBAKPOLOR V. THE STATE

MATTHEW OBAKPOLOR

APPELLANT

V.

I

0 THE STATE

RESPONDENT

APPEAL NO. SC. 155/1989.

SUPREME COURT OF NIGERIA

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UWAIS,

J.S.C.

KAWU,

J.S.C.

WALT,

J.S.C.

OLATAWURA,

J.S.C.

AKPATA,

J.S.C.

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11th January, 1991.

Criminal Law and Procedure -

Defective committal order of magistrate - When objection

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thereto is properly raised - Effect of accused pleading to a defective committal order

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Duty and Power of Magistrate in committal proceedings - Section 324 Criminal

Procedure Act - Defence of alibi - Onus on accused in proof of - Duty of prosecution

when the defence is properly raised.

Evidence - Proof

of alibi - Onus on accused - Discharge of - Identification of suspect

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Whether identification parade necessary where a witness knows the suspect well before

and gives his name - Document produced and made use of by parties and court -

Whether deemed to have been tendered.

Practice and Procedure -

Statutory provisions or Rules of Court - Compliance of Courts

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thereto - Need to avoid clinging to technicalities at the expense of justice.

ISSUES:

1.

Whether a committal proceedings conducted by an investigating Magistrate

without strict compliance with the provisions of sections 314 and 323 of the

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Criminal Procedure Act is null and void.

2.

What is the effect where record of preliminary inquiry though not tendered in

evidence is produced and made use of by an accused person and adverted to

by the prosecution and the trial court?

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3. What is the duty of an accused person who seeks to rely on the defence of

alibi?

FACTS:

The accused/appellant, on an information filed by the Attorney- General of

Bendel State, was charged with the murder of one Dele Kukuru. The charge arose

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from the committal of the accused to the High Court for trial by the Magistrate who

conducted a preliminary inquiry under the Criminal Procedure Act.

The case for the prosecution was that on 14th August, 1985 the accused

stabbed the deceased and three other persons, including the P.W.1 with a dagger.

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NIGERIAN SUPREME COURT CASES

[19911 1 N.S.C.C.

The RW.1 testified that he knew the accused very well before the date of the incident

and he, in his statement, mentioned the accused by name as the assailant.

Following the incident the accused took refuge in the house of P.W.2. There he

confessed to P.W.2 that he had been engaged in a fight with certain persons and

that one of them had died. The accused pleaded with P.W.2 to allow him spend

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the night in his house. After eating the accused was overcome by sleep and the

P.

W.2 sneaked away and lodged a complaint with the police against the accused.

The police later met the accused at the PW.2's house and arrested him.

In his defence, the accused set up an alibi to the effect that he was at RW.2's

house before the incident leading to the death of the deceased and till he was

arrested. He denied telling P.W.2 that he had stabbed someone.

In his address, defence counsel submitted that the committal of the accused

to the High Court for trial was null and void because of non-compliance with the

provisions of sections 314 and 323 of the Criminal Procedure Act. Counsel for the

prosecution, in reply, argued that there was compliance with the relevant provi-

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sions of the C.P.A. and that if there was in fact non-compliance such non-compli-

ance was not prejudicial to the accused.

In a reserved judgment the learned trial judge held that there was compliance

with the relevant provisions of the C.P.A. and that the defence of alibi was not

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properly made out. The accused was therefore found guilty of the offence of murder

and was convicted and sentenced accordingly.

Dissatisfied with the decision of the trial High Court, the accused appealed to

the Court of Appeal on the ground,

inter alia,

that the learned trial judge was wrong

in holding that the accused was properly committed for trial by the magistrate at

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the preliminary inquiry to the High Court for trial. The Court of Appeal held,

inter

alia,

that the committal proceedings were substantially in conformity with the

relevant provisions of the Criminal Procedure Act. The appeal was dismissed. Still

dissatisfied, the accused/appellant further appealed to the Supreme Court con-

tending,

inter elle

that the learned justices of the Court of Appeal erred in law in

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confirming the conviction of the appellant for murder in a trial initiated by an

incompetent information based on an invalid committal preliminary investigation

proceedings and that the learned justices also erred in law in confirming the

rejection by the trial judge of the defence of alibi and thereby occasioned a

miscarriage of justice.

HELD:

1.

The provisions of sections 314 and 323 of the Criminal Procedure Act are

mandatory and failure to carry them out in substance may render the committal

of an accused person to the High Court for trial a nullity. However, failure to

comply strictly with rules such as the provisions of section 314 and 323,

although couched in mandatory terms, will not render the proceedings null

and void if they are substantially complied with and if the objective of the rules

is not defeated by failure to strictly comply with them.

In the instant case, the magistrate committed the accused/appellant for trial

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without taking into consideration his statement or any such evidence as is

given by him or his witnesses as required by section 323. This was because

he had not then been called upon to give evidence if he so desired. However,

since the magistrate subsequently called on the accused/appellant to exercise

his right to give evidence or call any witness in accordance with the relevant

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provisions of the C.P.A. the irregularity was minimised, if not completely put

right.

(See p.33, lines 34 - 36 & p.34,.lines 24 - 32).

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