PAUL YABUGBE VS C.O.P
(1992) LCN/2485(SC)
In the Supreme Court of Nigeria
Friday, April 10, 1992
Case Number:SC. 162/1990
RATIO
WAIVER OF RIGHT TO INSTITUTE AN ACTION
“While an individual can be said to have waived his right to institute an action against the public officer by his failure to do so within three months of the act complained of, the Commissioner of Police or the Director of Public Prosecution cannot by his indolence or his tardiness or negligence or deliberate act of default waive a public right to lay a charge or an information against a public officer for a crime committed by him unless statute or the constitution clearly and specifically provides for such a waiver. It cannot be said to be within the contemplation of the law makers to protect public officers against prosecution for crimes they may commit on the pre or otherwise that such crimes were committed in the lawful execution of a public duty. It cannot be. The prosecution of the appellant was proper. The protection provided by section 2 of the Public Officers Protection Law is not available to him”. PER AKPATA J.S.C
WHERE ERROR OR OMISSION TO STATE OFFENCE OR PARTICULARS DOES NOT MISLEAD ACCUSED
“Section 166 of the Criminal Procedure Act states that no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence of those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission. I will like to sum it up thus: where an offence known to law is disclosed in a charge and the penalty for the offence is prescribed in a written existing law and the charge is erroneously brought under a wrong section of an existing law or under a law which had been repealed or has ceased to exist, and both the accused and his counsel are not misled and no objection is raised to the defective charge, a conviction for the offence disclosed in the charge will not be set aside on appeal if there has been no miscarriage of justice.” PER AKPATA J.S.C
JUSTICES:
UWAIS JUSTICE, SUPREME COURT
BELGORE JUSTICE, SUPREME COURT
NNAEMEKA-AGU JUSTICE, SUPREME COURT
WALI JUSTICE, SUPREME COURT
AKPATA JUSTICE, SUPREME COURT
BETWEEN
APPELLANTS
PAUL YABUGBE
AND
RESPONDENTS
COMMISSIONER OF POLICE
AKPATA, J.S.C: (Delivering the Leading Judgment): Will a public officer who has committed, a criminal offence in purporting to carry out any public duty be immuned from prosecution if within three months of committing the offence he has not been charged to court What is the meaning of the word “prosecution” within the con of the Public Officers Protection Law These and other questions call for resolution in this judgment.
The appellant, who was, at the time material to this case, 3rd June, 1979, an Assistant Superintendent of Police, was arraigned as the third accused along with two others, first and second accused persons, before the Magistrate’s Court, Oyo on a charge of unlawfully assaulting one Olayiwola Afolabi and causing him harm and thereby committed an offence contrary to and punishable under section 296 of the Criminal Code Cap 28, Volume One, Laws of Western Nigeria 1959.
The facts of the case that led to the arrest and prosecution of the appellant and the first and second accused persons who were Police Constables are these: Olayiwola Afolabi was a Senior Magistrate. On 3/6/79 at about 7.00 p.m, he drove in his car in company of his wife, PW.2, his sister-in-law, PW.3, and two of his children aged between two and four years, to Akesan Market, Oyo. On getting there he parked at a point very close to the grass verge on the right side of the road, not far from the Motor Traffic Division of the Nigerian Police.
His wife and her sister got down and went into the market while PW.1 and his two children remained in the car. About fifteen minutes later the first accused who was in uniform went to PW.1 on the instruction of the third accused the appellant, and requested him to move his car from where it was parked because, according to first accused, it was causing obstruction. PW.1 who was certain from all indications that he was not causing obstruction and that parking there was not prohibited explained to the first accused that he was waiting there for his wife who had gone into the market to buy some food stuffs.
The first accused returned to the Motor Traffic Division and told the appellant of the refusal of PW.1 to remove his car from where it was parked. The appellant who was in mufti personally went to PW.1 and asked him to move from the place. When PW.1 would not move the appellant asked for his vehicle particulars. PW.1 doubted his authority to ask him for his particulars since he was in mufti. It was at this stage the appellant informed PW.1 that he was the police officer in charge of the Motor Traffic Division and sent one of the police constables, to go for his identity card at the Police Station.
Before the constable returned the wife of PW.1 had come out of the market. The appellant would not allow her to enter the car. He indicated he would place the matter a test case. According to the prosecution, the appellant ordered the first and second accused to arrest, beat and put PW.1 in the cell. This order, the first and second accused carried out zealously. PW.1 was kicked and dragged to the police station. He was beaten to a state of semi-coma. His clothes and pants were torn leaving him half-naked.
PW.2, the wife of P.W.1, in dismay went for P.W.5, Mr. Oladosun Gbadegeshin, a lawyer by profession who lived very close to the Motor Traffic Division. P.W.5 arrived to find PW.1 on the floor with only his pants, which was in shreds, on about the same time PW.6, Hamzat Taiwo Ayanlaye, a Civil Servant was attracted to the scene because of the large crowd gathered there. When he found that PW.1 was the victim of the assault he exclaimed in disgust that the police men were inviting trouble for themselves for beating up a magistrate to the point of death. The disclosure by PW.6 that PW.1 was a magistrate had a chilling effect. Calm prevailed. The appellant readily agreed that PW.1 be taken to the Oyo State Hospital where he was attended to by PW.4, Dr. Wahabi Lawal. PW4 testified as to the nature of injuries sustained by PW.1 and the fact that he was on admission for three days. PW.8, Afolabi Fagbile, an Inspector of Police, produced a sketch plan of the scene, Exhibit A.
It was the defence of the accused persons, including the appellant, that when the appellant who was the Divisional Traffic Officer came to the Traffic Once on inspection and observed before he drove into the premises that P.W.1 was causing obstruction he sent the first accused to him to move his car from where it was parked. Not only did P.W.1 refuse to move his vehicle, he also refused to surrender his vehicle particulars. At a stage, according to the defence, P.W.1 grabbed the first accused by his shirt and slapped him. On seeing PW.1 assaulting the first accused, the second accused joined his colleague in effecting the arrest of PW.1.
The defence tendered in evidence three documents, namely: (i) Exhibit N. a letter dated 11th June, 1979, written to the Commissioner of Police by the Chief Registrar, Oyo State, High Court, on the directive of the Chief Judge, drawing the attention of the Commissioner to the report the Chief Judge had received relating to the assault on the person of PW.1. The Commissioner of Police was urged to look into the matter; (ii) Exhibit P. another letter dated 19/6/79, also by the Chief Registrar on the directive of the Chief Judge, disclosing to the Commissioner of Police that a delegation of three members of the Magistrates’ Association of Nigeria met the Chief Judge in respect of the subject matter of Exhibit N. and urged the Commissioner of Police to speed up his investigation into the matter as “any undue delay with regards to this matter may lead to unforeseen and unpleasant circumstances”; (iii) Exhibit Q. which is undated is another letter from the same source to the Commissioner of Police informing him that “since it appears that you are not doing anything to speed up enquiries about the case mentioned above and allow Mr. Afolabi get speedy justice, the Chief Judge of Oyo State will give a free hand to the Magistrates’ Association of Nigeria and Mr. Afolabi, to take any action whatever they deem fit to get appropriate redress for what Mr. Afolabi properly regards as unprovoked assault on him by a policeman.”
It was therefore the defence of the accused persons that the trial Senior Magistrate was disqualified from trying the case he being a member of the Magistrates’ Association of Nigeria and that the maxim nemo judex in causa sua was applicable.
In his judgment the learned trial Senior Magistrate Mr. J.O. Moradeyo came to the conclusion from the totality of the evidence adduced before him. Including the sketch plan Exhibit A, that PW.1 caused no obstruction. He was satisfied that PW.1 was unlawfully assaulted and was caused harm within the meaning of section 296 of the Criminal Code, he was also satisfied that, granted that PW.1 resisted arrest which was not conceded, the force used was more than necessary in effecting the arrest of PW.1 and that there was excess of violence. The learned senior magistrate was a) so of the view that a person who breaches the Road Traffic Law is only “contravened” and not arrested. Only persons who commit any offence under the Criminal Code are arrested.
The learned senior magistrate rejected the submission that the maxim nemo judex in causa sua was applicable to the case as it was not the Magistrates’ Association that was trying the case. Besides, said the senior magistrate, the accused persons opted to be tried by him summarily when the charge was read to them as required by section 304(2) of the Criminal Procedure Act. Each of the accused persons was accordingly found guilty and sentenced to a term of twelve months imprisonment without an option of a fine.
On appeal to the High Court the question of the powers of the police to effect an arrest was fully gone into. Falade, J., the appellate judge, observed thus at page 90 of the record of proceedings:
“One should remember that obstruction of the highway or failure to produce the particulars of one’s vehicle is a trivial or simple offence in which it will not be reasonable to use even the slightest force to prevent it. There are several avenues open to the appellants to arrest the PW.1 if they consider it necessary before they can resort to force. Section 3 of the Criminal Procedure Act is clear on this point. It provides:
“In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action:’
The appellants did not do any of the pre-conditions in the above section but instead the 3rd appellant became highly irritated and aggressive and shouted. “Get him (PW.1) arrested, beat him up and put him in cell.” This is more of a jungle order rather than an order in a civilized society. The three appellants, brutal crude and uncouth as they were, pounced on the PW.1 and beat him to a state of coma, tore his dresses to nakedness and glorified in being brutal to a fellow citizen only because they were policemen.”
The High Court also found against the appellant in respect of other issues canvassed including the question as to whether a trial senior magistrate was a judge in his own cause. Falade. J., therefore dismissed the appeal. He however gave each of the accused persons an option of fine of N250.00 on the ground that the appellants were first offenders.
It was only the third accused, the present appellant that was dissatisfied with the judgment of the High Court. He appealed to the Court of Appeal against the judgment of Falade, J. He filed six grounds raising virtually all the issues canvassed in the High Court. The Court of Appeal also resolved all the questions against the appellant. Ogwuegbu J.C.A” in his leading judgment observed in part thus:
“In my view the three letters (Exhibits “N”, “P” & “Q”) represent the approach of one who was out to see that justice took its course and speedily too. By no stretch of the imagination can one import to them the meaning that the Magistrates’ Association of Nigeria had taken a stand and were itching for a pound of flesh.”
The appeal was dismissed.
The appellant who is unrelenting and obviously feels that justice has not been done in the case has now come to this Court raising at least one fresh issue for determination. On 18/10/90 his application for leave to raise new points of law not taken in the Courts below was granted.
Brief of argument was filed on behalf of the appellant: The issues raised therein as arising from the grounds of appeal read:
“(i) Whether the prosecution’s case is maintainable in the light of the fact that the appellant was charged outside the three months period of limitation prescribed by the Public Officers Protection Law, Cap. 106, Laws of Oyo State of Nigeria, 1978.
(ii) What is the effect of a trial for an offence committed under a non-existing Law
(iii) Whether the trial of the appellant could be said to be fair in the light of Exhibits P. and Q.”
The second issue as framed is presumptuous and unacceptable. It amounts to over-simplification of the question in controversy. The real issue is whether the appellant was tried for an offence known to law and whether the charge was brought under a non-existing law, and if so whether in the circumstance the conviction is vitiated. No brief of argument was filed on behalf of the respondent. When, however, the appeal came on for hearing on 23/1/92, Mr. Adepoju, Senior Legal Officer, Ministry of Justice, Oyo State for the respondent, indicated that the respondent’s brief would soon be filed. As this Court was not prepared to grant any adjournment learned counsel was allowed to proffer oral argument on behalf of the respondent.
In respect of the first issue, which appears to me to be the main issue for consideration, Mr. Urowayino, learned counsel for the appellant, referred to the Public Officers Protection Law Cap. 106, Laws of Oyo State of Nigeria 1978, section 2 of which provides thus:
“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the following provisions shall have effect –
(a) the action, prosecution, or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof: Provided that if the action, prosecution or proceedings be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison;
(b) whenever in such action a judgment is obtained by the defendant, it shall carry the right to recover from the plaintiff all the costs which the defendant has properly incurred in defending such action;
(c) when the proceeding is an action for damages, tender of amends before the action was commenced may, in lieu of or in addition to any other defence, be pleaded; if the action was commenced after the tender, or is proceeded with after payment into court of any money in satisfaction of the plaintiff’s claim and the plaintiff does not recover more than the sum tendered or paid, he shall no recover any costs incurred after the tender or payment, and the defendant shall be entitled, as from the time of tender or payment, to all costs which he had properly incurred in defending such action; but this provision shall not affect costs on any injunction in the action;
(d) if in the opinion of the court the plaintiff has not given the defendant a sufficient opportunity of tendering amends before the commencement of the proceeding, the court may award to the defendant all the costs which he has properly incurred in defending the action,”
According to learned counsel by virtue of section 2 of the relevant law the appellant “and his co-accused ought to have been charged to court within three months of the commission of the offence. Failure to charge them to court within the statutory period, he submitted, rendered the trial a nullity and the subsequent conviction void. The appellant, he stressed, was not just a public officer but was also at the material time executing a lawful public duty. In support of his contention learned counsel referred to Egbe v. Alhaji (1990) 3 SCNJ 41; (1990) 1 NWLR (Pt.128)546; Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549; (1985) 5 SC. 50 and Ekeogu v. Aliri (1991) 3 SCNJ 45 at 57, (1991) 3 NWLR (Pt.179) 258, These cases established that where the public officer commits the act complained of and it is connected with and done in pursuance or execution or intended execution of a public duty the law protects him, Any proceedings against him should be commenced within three months from the date of the act complained of.
It was the submission of Mr, Adepoju that section 2 has been judicially interpreted in Egbe v. Alhaji (supra), also reported in (1990) 1 NWLR (Pt.128) 546, According to him the word “prosecution” in section 2 does not relate to a criminal proceeding and that all the cases relied on by Mr. Urowayino relate to civil cases, He pointed out that generally time does not run against the state in respect of criminal offences unless as provided by statute.
In his reply Mr, Urowayino cited the case of the State v. Okpegbor & Anor (1980) 2 NCR, 291, a High Court decision, wherein it was held that section 2 also relates to criminal cases.
This legal issue is of great importance. At common law, there is no time limit for commencing a suit by the Crown (State); and therefore in all cases of treason, felony, misdemeanour, where a time is not limited by statute, a prosecution may be commenced at any length of time after the offence. (See Archbold, 34th Edition, Paragraph 151). For instance, by section 43 of the Criminal Code, a person cannot be tried for treason unless the prosecution is commenced within two years after the offence is committed. Also by section 218 of the Criminal Code, a prosecution for unlawful canal knowledge of a girl under the age of 13 years must be begun within two months after the offence is committed.
Learned counsel for the appellant contended that because of the use of the word “prosecution” in section 2 any criminal prosecution, be it for murder or embezzlement of public funds, shall not lie or be instituted unless it is commenced within three months next after the act. In effect, according to learned counsel, if PW.1 had been killed by the appellant with the assistance of the first and second accused persons in the circumstances of this case, they would go scot-free if the Commissioner of Police or the Director of Public Prosecutions vacillated and the appellant and his co-accused were not arraigned for the offence of murder within three months from 3/6/79.
Mr. Urowayino strenuously maintained this line of argument because in the case of The State v. Okpegbar & Anor (supra) cited by him, the accused persons who were police men were charged with murder. They were alleged to have killed the deceased while they were on duty on January, 27th 1980. At the trial the accused brought a motion to dismiss the charge in which they contended that the prosecution was barred by section 2(a) of the Public Officers Protection Law Cap. 137 Laws of Bendel State in that they were public officers acting in the execution of their duty and the charge should therefore have been brought within three months of the alleged offence, that is, by April 28th, 1980. In his ruling the trial Judge held that the information was not properly before the court as it had been brought out of time, in that it was filed on May 7th 1980, ten days outside the three months allowed by the Public Officers Protection Law.
It is instructive to note that section 2 talks of “prosecution” and not “criminal prosecution.” The use of the word “prosecution” is not restricted to criminal proceedings. The word used in the legal sense means one of three things: (a) a proceeding by way either of indictment or of information in the criminal courts, in order to put an offender on his trial; or (b) the institution and carrying on of legal proceedings against a person, not necessarily criminal proceedings or (c) the party by whom criminal proceedings are being instituted and carried on. (See Shorter Oxford English Dictionary Volume 2 Third Edition, page 1690).
In my view the word “prosecution” within the con of section 2 means “the institution and carrying on of civil legal proceedings. This is made apparent by subsequent use of the words “plaintiffs” and “defendants” in the explanatory subsections (b), (c) and (d) and the complete absence of the words “prosecution” and “accused” in these subsections. In construing a word in a statute which is capable of having two meanings the court should adopt that construction which will not defeat the intention of the law-maker. (See Mandara v. A-G. of the Federation (1984) 1 SCNLR 311 at pages 326 and 350). It could not have been the intention of the State to shield or protect Public Officers from criminal prosecution for criminal offences committed by them in the guise of performing their official duties by limiting the time to initiate prosecution to only three months.
The side-note to section 2 which is “Actions against public officers” also by implication excludes criminal prosecution. Admittedly side notes or marginal notes to any enactment do not form a part of the enactment. However as stated by this court per Eso, JSC., in the case of Oloyo v. Alegbe (1983) 2 SCNLR 35 at page 57, “though in modem times marginal notes do not generally afford legitimate aid to the construction of a statute, at least it is permissible to consider the general purpose of a section and the mischief at which it is aimed with the marginal notes in mind.” Idigbe, JSC., also in the case of Uwaifo v. A-G Bendel State (1982) 7 SC. 124 at pages 187-188 adopted the words of UpJohn LJ, that “while the marginal note to a section (and I would add, the side and explanatory note to an enactment) cannot control the language used in the section, it is at least permissible to approach – consideration of its general purpose and the mischief at which it is aimed with the note in mind,”
While an individual can be said to have waived his right to institute an action against the public officer by his failure to do so within three months of the act complained of, the Commissioner of Police or the Director of Public Prosecution cannot by his indolence or his tardiness or negligence or deliberate act of default waive a public right to lay a charge or an information against a public officer for a crime committed by him unless statute or the constitution clearly and specifically provides for such a waiver. It cannot be said to be within the contemplation of the law makers to protect public officers against prosecution for crimes they may commit on the pre or otherwise that such crimes were committed in the lawful execution of a public duty. It cannot be. The prosecution of the appellant was proper. The protection provided by section 2 of the Public Officers Protection Law is not available to him.
I now come to the second issue for determination. It is whether the appellant was tried for an offence known to law and whether the charge was brought under a non-existing law, and if so whether in the circumstance the conviction is vitiated, In-resolving this issue a short historical sketch is necessary.
Oyo State was part of the old Western Region of Nigeria. There was the Criminal Code Cap. 28, Volume One Laws of Western Region of Nigeria 1959. In 1976 three states were carved out of the Western Region of Nigeria, namely Oyo, Ogun and Ondo States. Before Oyo State enacted or compiled its own Laws. The Laws of the Western Region of Nigeria were still applicable in that State, Volumes of Laws of Oyo State subsequently replaced the Volumes of the Laws of Western Region. Although known as Laws of Oyo State 1978 there is nothing to indicate when the said 1978 volumes actually saw the light of day and when they came into effect. It is not clear whether they were published in a gazette or as gazettes. This becomes relevant because where an enactment does not provide a commencement date; the date of its publication in a gazette is regarded as the date of commencement.
In submitting that the laws under which the charge was brought was non existent, learned counsel for the appellant relied on Aburime v. The Stale (1978) 4 FCA 55 where the Court of Appeal (Benin Division) held that the appellant therein. Anthony Aburime, who was charged on the 19th day of January, 1977 before Ovie-Whiskey, CJ., and who found him guilty and convicted him for an offence committed on or about the 28th day of August. 1976, but charged under section 28(1)(a) of the Criminal Code Cap. 28 Volume One Laws of Western State of Nigeria 1959, was wrongly convicted and set aside the conviction. The Law under which the appellant was charged was said to be non-existent.
If the state counsel who appeared for the State in the case under reference had intimated the Court of Appeal that although there was at the time of the hearing of the appeal a “1976” Criminal Code Law of Bendel State, it was actually not in circulation until late 1977, if not early 1978.
I do not agree with learned counsel that the conviction of the appellant is null and void. Section 22(10) of the 1963 Constitution was not breached. The section states that no person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law. The offence for which the appellant was convicted is defined and the penalty therefore is prescribed in a written law. The written law at the time of trial was either the 1959 Law of the 1978 Law. The wording of section 355 of the 1978 law is ipsissimi-verbis with that of section 296 of the 1959 Law.
There was no error in stating the offence or the particulars required to be stated in the charge. An offence known to law was disclosed in the charge. It is the offence of a person doing unlawful grievous harm to another. The only particular which appears erroneous, that is granted that the Oyo State Criminal Code law was already in operation at the time the appellant was arraigned, is as to the law on which the charge was based. The appellant was represented by the counsel. Chief Olisa Chukwura, SAN. Neither he nor his counsel was misled. In the case of Oruwari v. The State (1985) 3 NWLR (Pt.l3) 486. Kutigi, JCA, (as he then was) in agreeing with the trial judge, held that the conviction and sentence of the appellant in that case was proper and not unconstitutional in that since the offence committed by the appellant was known to section 98(1)(a) of the Criminal Code Cap.31. Laws of Lagos State, the fact that the charge was brought under section 114(2) of the Criminal Code Cap. 31 Laws of Lagos State which had been repealed did not infringe on section 22(10) of the 1963 Constitution. I agree with him. Admittedly, in that case the correct section of the law was inserted before judgment was delivered. In the case of Commissioner of Police v. Okoyen (1964) 1 All NLR 305 at 307 this Court, per Brett JSC , made the point that “since in the present case the respondent and his counsel were in no way misled and knew what questions were in issue we are satisfied that no substantial miscarriage of justice had taken place.” Admittedly in Okoyen’s case the question of a charge being brought under a wrong section of the law or a non-existing law was not in issue. The case only goes to show that a conviction on a charge which relates to a known offence, but with incomplete pal1iculars can be upheld where the defence was not misled and no substantial miscarriage of justice has taken place.
Section 166 of the Criminal Procedure Act states that no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence of those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission. I will like to sum it up thus: where an offence known to law is disclosed in a charge and the penalty for the offence is prescribed in a written existing law and the charge is erroneously brought under a wrong section of an existing law or under a law which had been repealed or has ceased to exist, and both the accused and his counsel are not misled and no objection is raised to the defective charge, a conviction for the offence disclosed in the charge will not be set aside on appeal if there has been no miscarriage of justice.
The last issue for consideration is whether the trial of the appellant was fair in the light of Exhibits P. and Q. As urged in the trial court and in the Court of Appeal, it has also been submitted before us in favour of the appellant that the trial senior magistrate was a judge in his own cause and was therefore biased or likely to be biased since he was a member of the Magistrates’ Association of Nigeria. By implication it is the contention of the appellant that no magistrate in Nigeria was competent to try him as a result of the letters. Exhibits P. and Q. written by the Chief Registrar of the Oyo State High Court on the directive of the Chief Judge of that State to the Commissioner of Police.
As already pointed out the Commissioner of Police was requested in Exhibit P. to speed up investigation into the matter and warned that undue delay might lead to unforeseen and unpleasant circumstances. The Commissioner of Police was informed that a delegation of three members of the Magistrates’ Association of Nigeria had been to see the Chief Judge. In Exhibit Q. the Commissioner of Police was told that the Magistrates’ Association of Nigeria and PW.1 would take any action they deemed fit to get proper redress since it appeared the Commissioner of Police was doing nothing to speed up enquiries.
The anxiety of the Magistrates’ Association of Nigeria is quite understandable particularly in the light of the submission of counsel for the appellant in relation to the protection given to Public Officers under the Public Officers Protection Law. If the appellant and his subordinates were not tried in lime they would probably be protected by virtue of section 2(a) of the Public Officers Protection Law against any civil action PW.1 would have instituted. As rightly pointed out by Ogwuegbu, J.C.A., the three letters “represent the approach of one who was out to see that justice took its course and speedily too.”
The test to be applied in determining what constitutes bias which can be implied to a court or any tribunal is not actual bias but a real likelihood of bias. As Lord Denning, M.R. explained in Metropolitan Properties v. Lannon (1969) 1 F Q.B.577, and adverted to by this Court in the case of Deduwa v. Okorodudu (1976) 9-10 SC. 329 at pages 348 to 349:
“In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough …. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact. favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘That Judge was biased,”’
Firstly, it must be pointed out that the behaviour or attitude of the trial senior magistrate throughout the proceedings has not been impugned. The appellant has based his allegation of likelihood of bias or lack of fair hearing on the letters Exhibits P. and Q. The question is whether these letters in the circumstances of this case would make right-minded persons to think that the appellant had not received a fair hearing or that the trial magistrate was biased or likely to be biased. It seems to me that on a broad view of the case set against the background of Exhibits P. and Q., the ordinary reasonable man would have the impression that the Commissioner of Police was applying delaying tactics and was trying to shield his men from the search-light of justice. The right-minded person would hail the intervention of the Magistrates’ Association of Nigeria as bringing it home to the Commissioner of Police and as underscoring the fact that no man, including the appellant, is above the law. The mind of the ordinary reasonable man would not be polluted by the fanciful imputation that the trial senior magistrate was likely to be biased in the circumstance.
There has been no suggestion that the appellant and his counsel were not aware of the existence of Exhibits N. and P. when he, the appellant, opted to be tried summarily by the senior magistrate. He would not want to be tried by way of indictment in the High Court. It seems to me that the question of bias was raised to becloud the real issue in controversy. I find no merit in the appeal. It is accordingly dismissed. The decision of the Court of Appeal dismissing the appellant’s appeal to that Court is therefore affirmed.
UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother. Akpata, J.S.C. I entirely agree with the judgment.
The appellant is relying on the provisions of section 2 of the Public Officers Protection Law Cap 106 of the Laws of Oyo State of Nigeria. 1978 in his contention that the limitation of time therein applies since he was not prosecuted of the offence, with which he was charged, within 3 months of its commission. He also relies on the decision of Akpovi J. (as he then was) in The State v. Okpegbor & Anor. (1980) 2 N.C.R. 291.
Learned Senior Legal Officer, in reply, submitted that the word “prosecution” in section 2 of the Public Officers Protection Law, Cap. 106 does not relate to criminal proceedings because time does not, in general, run against the State in Criminal matters unless it is specifically so provided in a statute. Now section 2 provides as follows-
“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any, such Law, duty or authority, the following provisions shall, have effect-
(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof:
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was- a convict prisoner, it may be commenced within three months after the discharge of such person from prison;
(b) whenever in such action a judgment is obtained by the defendant. it shall carry the right to recover from the plaintiff all the costs which the defendant has properly incurred in defending such action;
(c) when the proceeding is an action for damages, tender of amends before the action was commenced may, in lieu of or in addition to any other defence be pleaded; if the action was commenced after the tender, or is proceeded with after payment into court of any money in satisfaction of the plaintiff’s claim and the plaintiff does not recover more than the sum tendered or paid, he shall not recover any costs incurred after the tender or payment, and the defendant shall be entitled, from the time of tender or payment. to all costs which he had properly incurred in defending such action; but this provision shall not affect costs on any injunction in the action;
(d) If in the opinion of the court the plaintiff has not given the defendant a sufficient opportunity of tendering amends before the commencement of the proceeding, the court may award to the defendant all the costs which he has properly incurred in defending the action.”
As can be seen from these provisions, the word “prosecution” appears in conjunction with the words “action” and “proceedings”. To interprete the word “prosecution” its natural and ordinary meaning must, first, be given to it. Secondly, that meaning must be in conformity with the meaning the whole of the section intends to convey.
The ordinary dictionary meaning of the word “prosecution”, as it applies to law, is the institution and carrying on of criminal charge before a court or carrying on of legal proceedings against a person – see The Concise Oxford Dictionary 7th Edition. Therefore, the word “prosecution” in its natural meaning is capable of applying to both civil and criminal cases. The question is: in what con has the word been used under section 2 of the Public Officers Protection Law To arrive at an answer it is necessary to bear in mind that at common law there is no time limit for commencing a suit by the State. This is of course a general rule. There may be instances where the time to prosecute is specifically limited by statute. Such instances can be found under the Criminal Procedure Law, Cap.3] of the Laws of Ondo State, 1978, in respect of private complaint for summary punishment (section 63), sedition (sections 52(1) and defilement of a young girl (section 221(2). But the charge in the present case which is unlawful assault does not fall under such categories. Since there is no specific limitation provided by statute in respect of the offence, then, the general rule which excludes limitation of time must apply. In addition there is the general rule of construction of statutes that the intention of the legislature must be carried out in construing a statute. This intention can only be understood by looking at the subject-matter which the words expressed in the statute are speaking of and the object of the legislature – see Edinburgh Street Tramway v. Torbain. (1877) 3 App. Cas. 58 at p.68. Applying the rule to the present case it is clear that the object of the Public Officers’ Protection Law is to afford protection to public officers in respect of anything done in execution of or carrying out their duty. The protection comes into play after the expiration of 3 months from the late of the commission of the act or acts which give rise to the cause of action – see Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549; Egbe v. Alhaji & Anor. (1990) 1 NWLR (Pt.128) 546 and Ekeogu v. Aliri (1991) 3 NWLR (Pt.179) 258. Is it the intention of the legislature, in enacting the Public Officers’ Protection Law, to protect public officers from prosecution in respect of any crime committed in the course of their duty I do not think so. It does not stand lo common sense and reason that a public officer is free to commit any offence in the course of his duty so long as criminal prosecution is not brought against him within 3 months. It will be absurd and ridiculous.
In the light of the foregoing the proper con in which the word “prosecution” in section 2 of the Law should be construed is the con in which the words “action” and “proceedings” are expressed. I think the intention of the legislature can best be arrived at by ascribing to the word “prosecution” the meaning in the Dictionary that applies to the institution or carrying on of civil proceedings against a person as opposed to criminal proceedings. Therefore I am, with respect. of the view that the decision in The State v. Okpeogor & Anor. (supra) is wrong and consequently, cannot be followed or applied to the present case. On the issue whether the appellant was convicted of an offence that was not known to law and nor was the charge brought under an existing law. I think the answer is simple. Before the creation of States in 1975, Oyo State was part of the erstwhile Western State of Nigeria, where the provisions of the Criminal Law Cap.28 of the Laws of Western Region of Nigeria, 1959 applied. With the creation of Oyo State from Western State of Nigeria, the Laws applicable to Oyo State were revised in 1979. The Criminal Law, Cap.30 of the Laws of Oyo Slate, 1978 supplanted the Criminal Code. Cap. 28 of the Laws of Western Region of Nigeria, 1959. At no time was there a vacuum before Cap.30 replaced Cap.28. The offencc of assault is common, though to a different degree, to both Criminal Codes – see sections 351 and 296 respectively. It is, therefore, a fallacy and idle to argue that the appellant was convicted of an offence that was not known to law or that the charge of unlawful assault was based on a non-existent law. It does not matter as to when Cap.30 came into force. The fact is that the appellant has not shown that there was a time when neither Code applied to the area that constitutes Oyo State.
Moreover, a conviction under the wrong law is not fatal if there is the provision of another law under which the conviction can stand – see Falobi v. Falobi (1976) NMLR 169 at 177 and Henry Stephens Engineering Ltd. v. Complete Home Enterprises Ltd (1987) I NWLR (Pt.47) 40 at p.48 – unless it can be shown that the accused was in fact misled by such error or a miscarriage of justice has been occasioned by reason of the error – see section 166 of the Criminal Code Law. Cap.31 of the Laws of Oyo State, 1978.
Finally on the issue of bias by the learned Magistrate that tried the appellant. The fact that the victim of the appellant was a magistrate and that the Magistrates Association of Nigeria was interested in the appellant being brought to book under Police Regulations or by criminal prosecution in a court is neither here nor there. The trial Magistrate subscribed to an oath of office to do right to all manner of people without fear or favour, affection or ill-will. The fact that he might be a member or he was a member of the Association does not mean that he is automatically disqualified from trying the appellant. It is far-fetched to assume bias based on the membership of an Association. Such allegation must be supported by concrete evidence of bias. Going through the whole of the proceedings before the learned Magistrate, I am unable to see anything that can slightly suggest or lead to the conclusion that the trial Magistrate was biased. If courts are to go by spurious allegation of bias as in this case, then no legal practitioner can be tried by any court because he belongs to the same profession as the Magistrate or High Court Judge that might try him. Similarly, judicial officers with shares in public companies or corning from a particular State of Nigeria cannot try or hear any case involving such companies or any of the arms of the Government of that State. I think there is a limit to which the chase of such wild goose can go. Concrete evidence of bias must be shown before the allegation can succeed. In the present case I see no such evidence and I, therefore, consider the allegation to be frivolous and unfair to the learned trial magistrate.
In the result, 1will for the above reasons and those contained in the judgment of my learned brother Akpala, J.S.C. dismiss this appeal. The decision of the Court of Appeal, which confirmed that of the lower Courts, is hereby affirmed.
BELGORE, J.S.C.: My learned brother, Akpata J.S.C. has in his judgment clearly set out the facts of this case subject of this appeal that I do not need to embark on the same exercise again. The issue of nemo judex in causa sua, to my mind, is completely unfounded. The appellant, on being arraigned before the trial court opted for summary trial after the charge was read to him in compliance with section 304(2) Criminal Procedure Law. The victim of the crime, a magistrate, like any other citizen ought to complain if a crime against him by police officers appeared to be slovenly treated by the Police Force. If his learned brothers raise an outcry that justice must be done that should not be taken for bias. The threat by Magistrates Association that police officers assault on one of their members should not be swept under the carpet by the Police Force, is surely not evidence of bias, rather it was an outcry against what appeared to be an attempt to cover up the crime by police inaction. The trial by a magistrate, to which no objection was raised at the arraignment, and with no evidence of personal bias on the pan of the magistrate, should not be seen as failure or miscarriage of justice. What would have been gross injustice was for the case to be left unprosecuted. I see no merit in this ground.
The Public Officers Protection Law (Cap 106, Laws of Oyo State of Nigeria (1978) should not be misconstrued for a blanket protection of public officers. It only protects any action, prosecution, or other proceeding against any person for an act done in pursuance or execution or intended execution of any law or public duty or authority or in respect of any alleged neglect or default in the execution of any such law, duty or authority.” The purport of the law is to protect public officer in civil liability for any wrongdoing that occasions damage to any citizen if the action is not instituted within three months after the act, default or neglect complained of. It has nothing to do with criminal liability; if it should be read to cover criminal liability the mischief resulting therefrom will be colossal, public officer in charge of expenditure or controlling votes can embezzle as much as he wishes once he can cover his crime for over three months. EGBE V. ALHAJI (1990) 1 NWLR (Pt.128) 546 is pointedly a civil matter; but STATE v.OKPEGBOR0 & ANOR (1980) 2 NCR (ALR) 291 is not the law. In matters civil time runs against the victim of state agent’s malfeasance but time does not run against the state.
The argument was proffered that the appellant was charged under a nonexistent law. The offence was committed on 3rd June 1979 and counsel for appellant contended that the charge was brought under Criminal Code Law of defunct Western Nigeria, which according to him, was no longer the law because Revised Laws of Oyo State 1978 came into operation on 26th April 1979. Learned counsel was certainly in error because only Edict No.1 of 1979 has that date for its commencement. It is the very Edict that allowed the entire laws of Oyo State and Acts and Decrees of the Federation pertaining to Oyo State to be revised. Thus it gave life to the preparation for compilation of the Laws of Oyo State as they existed up to 1978 and no more. The title is clear, to wit “REVISED EDITION OF THE LAWS EDICT. 1978; An Edict to provide for the Preparation, Printing and Publication of the Revised Edition of the Laws of Oyo State and for matters incidental thereto or connected therewith” with date of commencement fixed as 26th April, 1979. This Edict was the very authority for Law Revision Commissioner to embark on the work of collating all the relevant laws and nothing more. If the laws of Oyo State 1978 have really become operative there may be another Edict or Law of State Assembly giving a date for commencement. Edict No.1 of 1979, supra, even though in the very first volume comes immediately after the preface to volumes, and like the preface it is not a chapter of the Laws and follows the preface in sequential Roman numeral paging; followed in this order by other explanatory issues is the same Roman numeral paging e.g. Conversion Table at pages XV-XXXI and List of Chapters at pages XXXIII-XXXVII – showing Administration of Estates Law as Chapter I and Wills Law as Chapter 133. So it is wrong to assume that Laws of Oyo State 1978 commenced on 26th April 1979. Therefore for the purposes of the trial of this matter finally snaking its way on appeals to this Court the charge was properly made under a section of the Laws of Western Region of Nigeria 1959, Chapter 28 Volume 1.
It is for the above reasons that I agree with Akpata, J.S.C. that this appeal has no merit. I also dismiss it and uphold the conviction and sentence of the trial Court as affirmed by both the High Court and Court of Appeal.
NNAEMEKA.AGU, J,S.C.: This is a further appeal by the appellant, Paul Yabugbe, against the dismissal of his appeal by the Court of Appeal, Ibadan Division, coram: Kutigi, J.C.A. (as he then was) Omololu-Thomas and Ogwuegbu, J.J..C.A. That Court had dismissed the appellant’s appeal against the judgment of Falade, J., sitting in an Ibadan High Court and who had also dismissed an appeal against the judgment of Moradeyo, Senior Magistrate 1 wherein the appellant, along with two others, was convicted of an offence of assault occasioning harm punishable under section 296 of the Criminal Code, Cap. 28 Vol 1, Laws of the former Western State of Nigeria, 1959, and sentenced to 12months imprisonment.
My learned brother, Akpata, J.S.C., has fully set out the facts leading to the trial and conviction. I do not intend to repeat them. He has also fully dealt with the weighty legal issues that have arisen in this appeal. Much as I agree with his conclusions on the issues, yet, because of the importance and novelty of some of them. I wish to add some comments of my own.
The first important issue raised by this appeal is that of limitation of the time for the prosecution. It has been contended on behalf of the appellant that the prosecution of the appellant was not maintainable because he was charged outside the three months period of limitation prescribed by the Public Officers Protection Law, Cap. I06, Laws of Oyo State, 1978. It was pointed out by learned counsel for the appellant, Urowayino, that the offence of which the appellant, a police officer, was charged was allegedly committed on the 3rd of June, 1979, but that he was not arraigned until the 14th of September, 1979, that is 3 months and 11 days after the date of committing the offence. Hence, it was submitted that this was contrary to the letters and spirit of section 2 of the Public Officers Protection Law (Cap.106) Laws of Oyo State, 1978. It was further submitted that prosecution commences with arraignment and not with the date complaint was made to the police: Oyediran v. The Republic (1967) 1 N.M.L.R. 122, p.125. Further it was contended that on the judgment of this court in Eghe v. Adefarasin (1985) 1 NWLR (Pt.3) 549: (1985) 5 S.C. 50 and Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179)258: (1991) 3 S.C.N.J. 45, p.57, the prosecution was statute-barred when it was commenced and, therefore, invalid.
In reply learned counsel for the respondent. Mr. Adepoju, submitted that the cases cited relate to civil proceedings and that in criminal matters the principle is that time does not run against the State. In any event, although the appellant was a public officer, the offence of which he has been charged was not committed pursuant to his public duty, as it was not part of his duties as a traffic policeman to assault and brutalize a citizen.
I may pause here to dispose of one of the issues in this appeal, to wit: that the above submissions ought to he examined from the view-point of the Public Officers Protection Law (Cap. 106), Laws of the defunct Western State, 1959, and not on the basis of the Laws of Oyo State, 1978. This is because the offence was committed on the 3rd of June,1979, whereas the Laws of Oyo State, 1978, had not yet come into effect. The “Revised Edition of the Laws Edict, 1978” was promulgated on the 26th of April, 1979, and empowered the Law Revision Commissioner to embark on the work of collating, compiling and printing all the relevant Laws, those Laws did not in fact come into force until much later than the commission of the offence. The appellant was therefore, rightly, charged under the Laws of Western Region 1959.
I may also note that the Public Officers Protection Law of Oyo State, 1978, is the same, verbatim, with the Public Officers Protection Law of the defunct Western Region, 1959. So, the consideration of the point raised is equally necessary,
Now it is provided in section 2 of the Public Officers Protection Law (Cap. 106 of Oyo State as well as of the Western Region) as follows:
“2 Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Law or of any public duty or authority, or in execution of any such Law, duty or authority, or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the following provisions shall have effect-
(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof:
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison;
(b) whenever in such action a judgment is obtained by the defendant, it shall carry the right to recover from the plaintiff all the costs which the defendant has properly incurred in defending such action;
(c) when the proceeding is an action for damages, tender of amends before the action was commenced may, in lieu of or in addition to any other defence, be pleaded; if the action was commenced after the tender or is proceeded with after payment into court of any money in satisfaction of the plaintiff’s claim and the plaintiff does not recover more than the sum tendered or paid, he shall not recover any costs incurred after the tender or payment, and the defendant shall be entitled, as from the time of tender or payment, to all costs which he had properly incurred in defending such action; but this provision shall not affect costs of any injunction in the action;
(d) if in the opinion of the court the plaintiff has not given the defendant a sufficient opportunity of tendering amends before the commencement of the proceeding, the court may award to the defendant all the costs which he has properly incurred in defending the action.”
It is necessary to observe that although the word prosecution is used in subsection (a) of that section, all the provisions in sub-sections (b), (c) and (d) are rather germane to civil proceedings. One of the accepted principles of interpretation of statutes is that the enactment must be read and construed as a whole. As long ago as in the Case of Lincoln College (1595) 3 Co. Rep.58b, p.59b, it was established that the correct approach to the construction of a statute was to “make construction on all the parts together, and not of one part only by itself.” This principle was reiterated in the case of Canada Sugar Refining Co., Ltd. v. R. (1898) A.C. 735, at p.741 and has been re-affirmed in many subsequent cases. In Midland Bank, Ltd. v. Conway B.C. (1965) 1 W.L.R. 1165, the principle prevailed over arguments based on the literal wording of the Act and the purpose of the provision in question. Applying the principle in the present case, it appears to me that, reading the provisions in section 2 of the Public Officers Protection Law of the Western Region/Oyo State as a whole, the entire section relates to civil and not to criminal proceedings.
This view of the section would be in complete accord with the maxim: nullum tempus occurrit regi (lapse of time does not bar the right of the crown (to prosecute a crime). This is based on the principle that the time and attention of the sovereign must be supposed to be occupied by the cares of government. It has therefore been consistently held, pursuant to this maxim, that criminal prosecution for felonies and misdemeanours might be commenced at any distance of time from the commission of the offence. In England, the Nullum Tempus Act of 1769 left this principle intact and, being a statute of general application, it has been received in Nigeria since 1900.
It is helpful to observe that the word “prosecution” is one of imprecise import, in that it relates to civil and criminal proceedings. A man can “prosecute” a civil action just as he can prosecute a criminal. That the word “prosecute” can very appropriately be used in relation to civil proceedings is supported by decided cases: see –
Harrison v. Wardle 5 B & Ad.146;
Colley v. Hart 44 Ch. D. 179;
Morris v. Matthews 2 Q.B. 293, and also
Haworth v. Ormerod 6 Q.B. 300.
So, the least that can be said of the use of the word “prosecution” at the beginning and in sub-section (a) of section 2 of the Public Officers Protection Law of Oyo State, State (Western Region is that it could refer to both civil and criminal proceedings. If this view is taken, then I am bound, in the construction of the section, to apply a well-known canon of construction – ut res magis valeat quam pereat. This principle of construction has been succinctly expounded by Lord Shaw in the case of Shannon Realities, Ltd. v. Villede St. Michael (1924) A.C. 185, at pp.192-193 in these words:
“Where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system.”
I shall put this in another way. It is against public policy for government to use its machinery to shield criminals from prosecution. If the above section is interpreted to cover public servants who commit crimes rather than limiting the protection to civil wrongs committed in the execution of their lawful duties, such an interpretation, in my view, falls foul of this public policy. I shall apply the above principle of construction and prefer to limit the protection to civil proceedings arising from acts connected with and done in pursuance or execution or intended execution of the officers public duty: see Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546; (1990) 3 S.C.N.J. 45, at p.57. On these principles, there appears to be force in the argument of learned counsel for the respondent that having regard to the extent and nature of the assault and injuries inflicted upon the complainant because he, a Magistrate, happened to park his car near the entrance of the Motor Traffic Division of the Police, the offence was not part of his public duty. I, therefore, agree that the appellant cannot seek protection under section 2 of the Public Officers Protection Law. The decision of the High Court of Bendel State in The State v. Okpegbor & Anor (1980) 2 N.C.R. 291 does not represent the law.
I shall next comment on the contention that, because the Magistrates Association to which the learned trial Senior Magistrate probably belonged, petitioned against the delay of the Police to charge the appellant and his co-accused to court, his subsequent trial by the learned Magistrate was in breach of the rule of natural justice: nemo judex in causa sua (no one can be a judge in his own cause). All Magistrates were interested in the prosecution, learned counsel submitted.
Now the true ground for this rule is bias. A man is said to be a judge in his own cause when he is likely to be biased in favour or against either party for reasons of interest or favour. In other words, if he has either pecuniary or proprietary interest in the subject-matter in litigation, or, because of his relationship with either of the parties, he is likely to be biased in favour of or against him, then he ought not be the judge.
In support of his argument in this case, learned counsel cited the case of Metropolitan Properties Ltd. v. Lannon (1968) All E.R. 304 where Denning, M.R. adopted the reasoning of Hewart, C.J., in R. v. Sussex Justices, ex parte McCarthy (1923) All E.R. 233, at p.234 that:
“It is not merely of some importance but of some fundamental importance that justice should both be done and be manifestly seen to be done.”
I entirely agree with this.
It is true that in this case, there has been no suggestion that the learned trial Senior Magistrate had any proprietary or pecuniary interest in the prosecution of the appellant. On this issue I have to consider the case of Dimes v. Grand Junction Canal (1852) 3 H.L.C. 759 in which Lord Cottenham, the Lord Chancellor, who owned 90 shares in the canal company gave judgment in favour of the company in a suit between the Lord Mayor and the company. In holding that this was in breach of the rule of natural justice, the House of Lords stated:
“No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in the concern; but my Lords, it is of the last importance that the maxim no man is to be a judge in his own cause be held sacred. And this is not to be confined to a cause in which he is a party but applies to a party in which he has an interest.”
No doubt, a shareholder of a company has an interest in the company. The short question raised by this aspect of the appeal is whether this principle, which has been applied to a judge adjudicating in a company in which he holds shares, applies to a professional and unincorporated association of which a judge is a member. There is no doubt that such an association is juridically different from an incorporated company. It is no legal person. Its membership is, often, nebulous and indeterminate. Members’ interest in such an association is neither pecuniary nor proprietary. It is true that, unlike in Dime’s case (supra) in which an impartial onlooker who knew of the Lord Chancellor’s proprietary and pecuniary interest in the canal company must doubt whether he could administer unbiased justice in the matter, no impartial observer can come to such a conclusion simply because a Magistrate was adjudicating over a case in which another Magistrate was a complainant. To invoke the principle in Dime’s case on the facts of this case will lead to absurdity.
I shall not do so. There is no evidence that the learned trial Magistrate was party or privy to the petition against the delay of the Police to prosecute the appellant. In my view, no case of bias or likelihood of bias has been made out against the learned trial Magistrate.
I am satisfied that the appellant was correctly convicted. His appeal fails and is hereby dismissed.
WALI, J.S.C.: I am privileged to read in advance a copy of the lead judgment of my learned brother Akpata, J.S.C. and I entirely agree with it.
For those same reasons contained in the lead judgment and which I hereby adopt as mine, I shall also dismiss the appeal as lacking in merit. It is accordingly dismissed. The judgments of the trial court as well as that of the Court of Appeal are hereby affirmed.
Appeal dismissed.
Appearances
- Urowayino For Appellant
AND
D.O. Adepoju, Senior Legal Officer, Ministry of Justice, Oyo State For Respondent
