Appeals in Criminal Cases-Appeal
to Supreme Court - Trial a
nullity Order of
re-trial-Magistrates' Courts
(Appeals) Ordinance, section
43 (a) (i).
The appellant was charged before
the Magistrate with an offence
which could be tried with the
appellant's consent but not
otherwise. The Magistrate
omitted to ask for that consent
and the trial was therefore a
nullity under the second proviso
to section 20 (iv) of the
Magistrates' Courts Ordinance.
On Appeal to the Supreme Court
the Judge declared the trial to
be a nullity and remitted the
case for re-trial.
The appellant appealed further,
arguing that a re-trial could be
ordered only where there was a
finding and sentence which might
be reversed, but where the trial
was null and void
ab initio,
as in this case, there was no
finding or sentence to reverse,
and the Judge could not do more
than quash the conviction as
being null in that it was part
of the trial.
For the police it was argued
that when a trial was declared
null and void, a new trial must
be ordered.
The question turned on section
43
(a)
(i) of the Magistrates' Courts
(Appeals) Ordinance, which
reads:-
" (a)
On an appeal from a conviction-
(i) reverse the finding and
sentence, and acquit or
discharge the accused, or order
him to be retried by a court of
competent jurisdiction, or
commit him for trial"
It was sought in argument to
avoid that provision on the
ground that the Judge in
declaring the trial to be a
nullity was not exercising
powers of that provision but
declaring the law in the terms
of the proviso to section 20 of
the Magistrates' Courts
Ordinance.
Held:
(1) The Supreme Court in appeals
from Magistrates' Courts is
confined to the powers conferred
by the Magistrates' Courts
(Appeals) Ordinance.
(2) Where the trial was null and
void for lack of jurisdiction,
the Supreme Court should reverse
the findings and sentence and
may then order are-trial under
section 43
(a)
(i) of the Magistrates' Court
(Appeals) Ordinance.
Cases cited:-
(1) Commissioner of Police
v.
Ayiku,
.'5 W.A.C.A. 89.
(2) R.
v.
Crane,
15 Cr. A.R. 183.
Appeal by defendant in a
criminal case from order of
Supreme Court made on
appeal from Magistrate: No.
3849.
F. R. A. Williams
for Appellant.
Adams,
Crown Counsel, for Respondent.
The following judgment
was
delivered:
Verity,
C.].,
Nigeria.
This is an appeal from an order
for re-trial made by the Supreme
Court on an appeal from the
Magistrate's Court, Lagos,
against a conviction for an
offence contrary to section 516
of the Criminal Code. It is
conceded on both sides that the
trial before the Magistrate was
null and void
ab initio
by reason of the failure of the
Magistrate to observe the
conditions of the first proviso
to section 20 (iv) of the
Magistrates' Courts Ordinance
(Cap. 122). which alone would
have conferred jurisdiction in
relation to the charge. The
learned Judge on appeal declared
the trial to be a nullity in
accordance with the
[pg182]
second proviso to that
section and thereupon ordered
that the case be sent back for a
re-trial before another
Magistrate.
It is to this Order that the
appellant takes exception and it
is submitted by Counsel on his
behalf that the Supreme Court's
power to order a re-trial at the
hearing of an appeal is confined
to cases in which there is a
finding and sentence which may
be reversed. This power is
conferred by section 43 of the
Magistrates' Courts (Appeals)
Ordinance (Cap. 123) which
provides
(inter aha)
that m giving judgment on the
conclusion of the hearing of an
appeal the court may:-
" (a)
On an appeal from a conviction-
(i) reverse the finding and
sentence, and acquit or
discharge the accused, or order
him to be retried by a court of
competent jurisdiction, or
commit him for trial!."
In a Gold Coast case relating to
an analogous enactment,
Commissioner of Police
v.
Ayiku
(1), this Court held that this
section rightly interpreted
means that when the appeal court
reverses the finding and
sentence it may then acquit or
discharge the accused, or may
order a re-trial or may commit
him for trial, but that the
exercise of these powers must be
consequential upon reversal of
the finding and sentence.
Counsel submits therefore that
these powers can have no
reference to a case in which the
trial has been null and void
ab initio
for there can in such case be no
finding or sentence to reverse.
It is submitted that in these
circumstances the appeal court
can do no more than declare the
trial a nullity by reason of the
statutory provision to that
effect contained in the second
proviso to section 20 (iv) of
Cap. 122 and thereupon quash the
conviction, which, as part of
the trial, is also null and
void.
On behalf of the Commissioner of
Police it was submitted by Crown
Counsel that when an appeal
court finds a trial to be a
nullity it has no alternative
but to order a new trial!. This
is stating the case too widely,
we think, and indeed more widely
than would be necessary to
support the order of the learned
Judge. There are a number of
cases, some of which are cited
in
Archbold
(31st Edn. on p. 343) in which
the Court of Criminal Appeal has
held the trial to be a nullity
but for one reason or another
has contented itself with
quashing the conviction and has
refrained from ordering a new
trial.
It would be sufficient to
submit, as Counsel did indeed
submit, that when a court of
appeal finds the proceedings
brought before it to be a
nullity it has the power to
order a trial of the charge
before a court of competent
jurisdiction. In
R.
v.
Crane
(2) it was held by the House of
Lords that the Court of Criminal
Appeal has such power by reason
of the fact that the statute
creating it conferred upon it
all the powers of the Court of
Crown Cases Reserved. As regards
this Court (the \Vest African
Court of Appeal) the power to
order a trial where the former
proceedings were a nullity is
specifically conferred by
section 12 (5) of the Ordinance
(Cap. 229). This power was
conferred by an amending
Ordinance passed some five years
after the original enactment
when it became apparent that no
such power had been conferred on
this Court.
Counsel for the Crown was unable
to refer us to any specific
enanctment 'conferring on the
Supreme Court on appeal from a
Magistrate's Court the power to
order a trial when the
proceedings brought before it on
appeal have been found to be a
nullity but only power to order
a re-trial where there has been
a finding which the appeal court
has reversed.
The argument of Counsel for the
appellant would appear therefore
to have much weight and were the
matter
res integra
it might have been that this
Court would have upheld that
argument.
Further consideration of the
case to which we have already
referred, however
(Commissioner of Police
v.
Ayiku),
discloses that in that case the
finding of the lower court was
reversed on the ground that it
had acted without jurisdiction
which rendered the trial a
nullity. This is precisely what
has happened in this
[pg183]
case. In certain matters,
of which the charge in the
present case is one,
jurisdiction is conferred upon
the magistrate only if the
accused person is informed of
his right to be tried in the
Supreme Court and nevertheless
consents to be tried by the
Magistrate. If he is not so
informed or does not so consent
then the Magistrate has no
jurisdiction and the trial if
proceeded with is null and void.
This would have been so even
without the provisions of the
second proviso which do no more
than reinforce by specific
enactment the legal consequences
of the general principle that
where a court acts without
jurisdiction, its proceedings
are a nullity.
In
Ayiku's
case, it was held that in such
circumstances the court should
reverse the findings and
sentence which formed part of
the proceedings held to be null
and void for lack of
jurisdiction and might then
proceed to order are-trial.
As.we have indicated the
decision in this case turned on
the interpretation of a Gold
Coast statute but the terms of
this statute do not differ
materially from those of the
Nigerian enactment and it
appears therefore that the
decision is not inapplicable to
the present case.
It was suggested in the course
of argument that in declaring
the trial before the Magistrate
to be a nullity the learned
Judge was not exercising any of
the powers conferred upon him by
section 43 of Cap. 123 but was
merely declaring the law as laid
down in precise terms by section
20 of Cap. 122 and that his
powers were not therefore
limited by the terms of the
first named section. If this
suggestion be adopted, however,
in order to support the order of
the learned Judge for re-trial
we would have to go further and
hold either that power to order
a re-trial must be read into the
latter section or that the
Supreme Court acting as a Court
of Appeal has inherent power to
order a re-trial in such
circumstances. We think it is
quite impossible to hold the
former view and in regard to the
latter, we must bear in mind
that a court of appeal is the
creation of statute and has in
relation to the determination of
matters brought before it by way
of appeal no inherent powers but
solely those conferred upon it
by the statute creating it. The
Supreme Court in the exercise of
its appellate jurisdiction is in
no better position.
The power of the Judge
to order a re-trial must, in our
view, stand or fall therefore
upon the terms of the statute
and while we have found the
contentions of Counsel for the
appellant sufficiently
attractive to justify the
consideration we have accorded
them, the question has been
determined by this Court in
Ayiku's
case the decision in which we
feel constrained to follow. The
learned Judge had therefore the
power to order a re-trial and in
the circumstances of the case it
was a proper order to make.
The appeal is therefore
dismissed. Appeal dismissed.
[pg 184]
