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COMMISSIONER OF POLICE
V.
MOSES TETTEH AYIKU
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST (GHANA)
1ST DAY OF APRIL, 1939
2PLR/1939/18 (WACA)
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OTHER CITATION(S)
2PLR/1939/18 (WACA)
(1939) V WACA P. 180
LEX (1939) – V WACA P. 180
BEFORE THEIR LORDSHIPS:
PETRIDES C.J., GOLD COAST (GHANA)
WEBB, C.J., SIERRA LEONE
BUTLER LLOYD, AG. C.J., NIGERIA
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BETWEEN:
COMMISSIONER OF POLICE — Respondent
AND
MOSES TETTEH AYIKU — Appellant
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ORIGINATING COURT(S)
APPEAL FROM DIVISIONAL COURT EXERCISING APPELLATE JURISDICTION
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REPRESENTATION:
A. J. AINLEY — for Crown
S. ADOO — for Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Section 319(1)(a) of the Criminal Procedure Code — Re-trial ordered by Judge — Whether finding and sentence should be reversed before re-trial ordered
PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT AND ORDER:- Order of reversal under Section 319(1)(a) of the Criminal Procedure Code — Meaning of
JURISDICTION: Order of appellate court to “reverse” the decision of trial court — Where based on want of jurisdiction in the Trial Court — Whether “annul” would appear to be the most appropriate word to use.
WORD AND PHRASES:- “Reverse” — Meaning of — Whether has no restrictive significance and can include “set aside” or “annul.”
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JUDGMENT OF THE WEST AFRICAN COURT OF APPEAL
Held:
Appeal dismissed and order for fresh trial re-affirmed.
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MAIN JUDGMENT
The following joint judgment was delivered:
PETRIDES, C. J., GOLD COAST, WEBB, C.J., SIERRA LEONE, AND BUTLER LLOYD, AG. C.J. NIGERIA
The whole question raised by this Court is whether the learned Judge of the Divisional Court in ordering a fresh trial was acting within the powers conferred on him by section 319(1)(a)(i) of the Criminal Procedure Code.
Counsel for the Appellant argues that this subsection in itself permits of three alternative courses:
1. To reverse the finding and sentence and to acquit or discharge the accused.
2. To order the accused to be retried.
3. To commit him for trial and this would appear to have been the view taken by the learned Judge of the Divisional Court, but in our opinion it is not the correct reading of subsection (a)(i) which is itself one of four alternatives.
In a case to which subsection (a)(i) is appropriate the finding and sentence must first be reversed and then three alternatives are open to the Appellate Court:
1. To acquit or discharge the accused.
2. To order him to be retried.
3. To commit him for trial.
We do not think that the word “reverse” has any restrictive significance. It may be taken as including “set aside” or “annul.” as appears from the Indian Reports in relation to an exactly similar subsection — cf. Sohoni p. 889 et seq.
In the case of want of jurisdiction in the Trial Court “annul” would appear to be the most appropriate word to use.
We therefore affirm the order of the Divisional Court for a new trial.
The appeal is dismissed.
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