This is an appeal by the appellant against an order of the Supreme Court Kano presided over by Bellamy, J., ordering that the appellant who had been acquitted by the Magistrate, Kano, on a charge under section 125 (1) (a) C.C. without trial should be tried by a competent Magistrate's Court.
The facts of the case are not in dispute and are that the appellant was taken before a Magistrate,' Grade III on a charge under section 125 (1) (a) C.C. and the appellant was discharged.
Five months later he was taken before Magistrate, Grade I, Kano, sitting at Zaria on the same charge. The prosecutor applied for adjournment to enable him to collect evidence on a certain point which he had to prove in the case. The Magistrate refused to adjourn the case and then acquitted the appellant.
The Prosecution appealed against the order of acquittal and the Appeal Court remitted the case for trial.
The learned Counsel for the appellant has admitted that there was, in fact, no trial after the appellant had pleaded “Not Guilty” before the Magistrate. The question then is whether the Magistrate could acquit the appellant and make it impossible for the charge to be brought up before the Court and heard without hearing any evidence.
We are satisfied that the learned Judge on appeal was right in sending the case back to be tried by another Magistrate.
In this connection we would point out that there is a difference between the effect of “acquittal” and “discharge”, and it is probable that the prosecution would not have appealed if the appellant had only been discharged.
It is improper to acquit an accused person when the charge against him has not been withdrawn under section 284 C.P.O., and when evidence had not been heard to enable the Court to decide whether he was guilty or not guilty.
We find no substance in this appeal and it is accordingly dismissed.