THE STATE V. LOPEZ

• Pages: 273-276

THE STATE V. LOPEZ

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273

THE

STATE V. LOPEZ

5

THE STATE

V

10 JOHN BABATUNDE LOPEZ

SUPREME COURT OF NIGEFIA

ADEMOLA,

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C.J.N.

COKER,

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J.S.C.

15

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LEWIS,

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J.S.C.

29th November, 1968.

RESPONDENT

APPELLANT

SUIT NO. SC 309/1967

Criminal Law and Procedure - Judgment - Failure to comply with 5.268 and

S.269 of the Criminal Procedure Code - Effect.

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ISSUES:

1.

What is the effect of a trial judge's failure to comply with sections 268 and 269

of the Criminal Procedure Code.

2.

Can an appellate court, as opposed to a trial court, decide on which witness

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to believe.

FACTS:

The Makurdi High Court on 28th August, 1967 found the appellant guilty of an

offence contrary to S.115(1) of the Penal Code. The appellant appealed to the

Supreme Court where learned counsel argued on his behalf that the judgment of

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the trial judge failed to comply with sections 268 and 269 of the Criminal Proce-

dure Code, in that he gave an oral judgment. The record of proceedings read:

"Oral judgment delivered. Conviction as charged"; and that being the case,

learned counsel argued that the ncn-compliance with sections 268 and 269 of the

Criminal Procedure Code rendered the trial a nullity. Counsel for the appellant also

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asked the Supreme Court to consider the case as a whole, including the evidence

of the appellant's witnesses which the learned trial judge rejected.

HELD:

1. Under sections 268 and 269 of the Criminal Procedure Code it is clear that not

only must the judgment be written but it must also contain the point or points

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for determination, the decision hereon also and the reasons for the decision.

This was in no way done here.

2 Where there is a mistrial the Supreme Court has power to order that a proper

trial should take place, and in that case the proceedings would recommence

from the point where they broke down; it also has power in such circumstances

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in cases where the interest of justice so requires, to quash the conviction and

allow an appellant to be discharged. In the circumstances of this case it would

not be oppressive to order a ret

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ial.

3.

It was not for an appellate court to determine who should be believed, provided

there was a substantial case, if believed, made against an accused.

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CASES REFERRED TO IN JUDGMENT:

1.

R. v. Fadina

3 F.S.C. 11.

2.

Abodundu v. The Queen

4

F.S.C. 70.

3.

R. v.

Gee (1936) 25 C.A.R. 198.