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THOMAS ARCHIBONG AND ANOTHER
V.
COMMISSIONER OF POLICE
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
10TH DAY OF JANUARY, 1946
2PLR/1946/9 (WACA)
OTHER CITATION(S)
2PLR/1946/9 (WACA)
(1946) XII WACA PP. 1 – 2
LEX (1946) – XII WACA PP. 1 – 2
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BEFORE THEIR LORDSHIPS:
BAKER, AG. C.J. (NIGERIA)
BROOKE, AG. S.P.J. (NIGERIA)
AMES, J.
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BETWEEN
THOMAS ARCHIBONG
HENRY INOKON – Appellants
AND
COMMISSIONER OF POLICE – Respondent
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ORIGINATING COURT(S)
Appeals from the Supreme Court of Nigeria (Appellate jurisdiction)
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REPRESENTATION
David — for Appellant
Hay — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Joinder of offenders — Magistrates Courts Ordinance, section 20(1) and Criminal Procedure Ordinance, section 304 (3) not complied with regarding one offender — Proper treatment of
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CASE SUMMARY
After the opening of the trial of one accused on a charge of larceny, another accused was joined on a charge of receiving. This second accused was not informed of his right to be tried by the Supreme Court, and was not asked for, and did not give, his consent to be tried by the Magistrate.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal):
1. The trial of the second accused was, by virtue of section 20(1) of the Magistrates Courts Ordinance and section 304(3) of the Criminal Procedure Ordinance, void ab initio and a nullity, and, as the two men were tried together, the trial of the first accused was also bad and the convictions must be quashed.
2. Per curiam: That to bring a joinder of two offenders within section 155 of the Criminal Procedure Ordinance, an application to join should be made before the issue is joined against either of them.
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MAIN JUDGMENT
The following Joint Judgment was delivered:
The appellants were convicted on the 14th of August last by the Magistrate Benin District sitting at Lokoja of stealing and receiving respectively and appealed to the Supreme Court of the Kaduna Judicial Division: the appeal was dismissed summarily on the 1st of November and it is from that decision that the two appellants now appeal to this Court on a question of law only. The grounds are:-
“1. Decision unreasonable and cannot be supported having regard to the evidence.
2. Decision erroneous in point of law.
3. Magistrate wrong in law to try two felonies in respect of TWO DIFFERENT ACCUSED AT THE SAME TRIAL.”
Counsel argued only the last ground:- the two charges were Nos. 303C/45 and 304C/45: after the trial on the first charge (Police v. T. Archibong) of two counts of Stealing contrary to sections 390(4)(b) and 390(5) of the Criminal Code had opened and the first accused had elected to be tried in the Magistrate’s Court and had pleaded not guilty to both counts an application was made by the prosecutor for “Case No. B/304C/45 Police v. Inokon to be taken along with this case as facts arose out of the same transaction and the witnesses and their evidence are identical in both cases”. The charge of Receiving contrary to section 427 of the Criminal Code was then placed on the record which goes on to say “Both accused have no objection to joint trial before this Court. Accused in B/304C/45 pleads not guilty”. The trial then proceeded and the first accused was found guilty on the second count only and the second accused guilty of Receiving.
Mr. David’s submission was that the second charge was wrongly joined against the second accused and that section 155 of the Criminal Procedure Ordinance which allows a joinder only applies where both defendants are charged together before a plea has been taken. He referred to cases in which accused had been tried together after a separate committal in the Supreme Court which had been held to be void and contended that there is no essential difference in this respect between summary trial and trial on information and that consent could not cure the irregularity. For the respondent it was sought to bring the joinder within section 155 of the Criminal Procedure Ordinance.
There was, however, apparent on the record a failure on the part of the Magistrate in the case of the second accused to inform him of his right to be tried in the Supreme Court and to obtain his consent to be tried by him. The proviso to section 20(1) of the Magistrates’ Courts Ordinance No. 24 of 1943 and section 304(3) of the Criminal Procedure Ordinance No. 42 of 1945 render the trial void ab initio and as this goes to jurisdiction the Appeal Court is bound to take the objection. We are therefore of opinion that the trial was a nullity and that the conviction in the case of both the accused must be quashed. The trial was a joint trial and must be held to be bad also as against the first accused because they were jointly charged.
It should be added, although we are not called upon to decide this point, that to bring a joinder of two offenders within section 155 of the Criminal Procedure Ordinance an application to join should be made before the issue is joined against either of them and that the pleas should then be taken after their consent has been obtained to be tried by the Magistrate.
Appeals allowed.
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