JUDGMENT OF EDMUND BANNERMAN C.J.
The appellant was charged with assault contrary to section 84 of the Criminal code, 1960 (Act 29), and was tried and convicted by a district magistrate, Accra, and sentenced to a fine of ¢50.00 or four months’ imprisonment with hard labour.
A supplementary ground of appeal filed and argued before this court alleged that “the trial magistrate erred in law in holding that failure of the accused to file notice of alibi rendered it impossible for the court to believe him.” It is not necessary for me to go into the facts of the case in any detail. The complainant alleged in his evidence that the appellant picked up a piece of brick and threw it so that it hit his left eye, thus injuring him in that eye; the appellant denied that he did any such thing and said that, not only did he not know the complainant before seeing him in court, but that on the day he was alleged to have committed the assault, he the appellant, was not in the house as he “proceeded to Nsawam.” In commenting on the appellant’s evidence, the learned magistrate said:
“The case for the defence was a denial. The accused would have this court believe that at the date and time the incident occurred he was at Nsawam. He made a statement which was silent on that fact. He never even filed a notice of alibi.
Consequently his failure to do so renders it impossible for this court to believe him—”
Section 131 (3) and (4) of the Criminal Procedure Code, 1960 (Act 30), which deal with the requirement to file notice of a defence of alibi state: [His lordship here stated the provisions as set out in the headnote and continued:]
Assuming that the defence of the appellant was one of alibi (as the learned magistrate found) the above section requires in such a case the trial magistrate to call upon an accused person to file a notice of alibi when such a defence is raised without notice of the particulars of such alibi having been previously given to the prosecution to adjourn the [p.272] case for such purposes, if necessary. It is only when the court has complied with this requirement and the accused has failed to furnish the details of his alibi as directed that any evidence of the alibi is shut out and excluded. Where the court has failed to comply with subsection (3) of section 131 by calling on the accused to give particulars of his alibi, there is no question of a refusal to furnish particulars, and subsection 4 of the said section will not apply. It will appear t
