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COMMISSIONER OF POLICE
V.
SAMUEL LAGOS
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
11TH DAY OF MAY, 1942
2PLR/1942/18 (WACA)
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OTHER CITATION(S)
2PLR/1942/18 (WACA)
(1942) VIII WACA PP. 56 – 58
LEX (1942) – WACA PP. 56 – 58
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
BANNERMAN, J.
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BETWEEN:
COMMISSIONER OF POLICE – Respondent
AND
SAMUEL LAGOS – Appellant
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REPRESENTATION
J. H. Coussey for C. E. M. Abbensetts — for Appellant
A. Ridehalgh — for Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Criminal Appeal — Procedure — Section 315 of Chapter 10 — Distinction between objection going to the question of jurisdiction of court and objection going to matter of procedure
CRIMINAL LAW AND PROCEDURE:- Order of retrial on appeal following conviction and sentencing — Duty of appellate court to first reverse the finding of guilt and sentence before making an order of retrial — failure thereto — How properly treated on appeal
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION – PRELIMINARY OBJECTION:- Objection to proceedings – Distinction between objection going to the issue of jurisdiction and one going to a question of procedural irregularity – Proper treatment of by court
JUDGMENT AND ORDER:- Order for retrial – Duty of court to first formally order that finding and sentence be reversed – Failure thereto – Legal effect
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CASE SUMMARY
A motion was taken challenging the court’s jurisdiction to entertain the appeal due to alleged failure to bring the appeal in the form required by section 315 of the Criminal Procedure Ordinance, Chapter 10.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
The objection may be in limine, i.e., going to jurisdiction in which event it is fatal, or may be matter of procedure or a mere technicality in which case the objection is not fatal and it is within the power and the duty of the Court to do substantial justice. Appellant given an opportunity to amend the form.
Cases referred to: –
Ohene Moore v. Akesseh Tayee (1 W.A.C.A. 242 and 2 W.A.C.A. 43)
Kojo Pon v. Attua Fua (P.C. 1874-1928, p. 96)
C.O.P. v. Ayiku (5 W.A.C.A. 89).
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MAIN JUDGMENT
The following joint decision on the preliminary objection and judgment were given:- per KINGDON, C.J. NIGERIA, PETRIDES, C.J., GOLD COAST AND BANNERMAN, J.
DECISION UPON PRELIMINARY OBJECTION
In this case the appellant was convicted in the Court of the District Magistrate, Tarkwu, and appealed to the Divisional Court of the Western Province. That Court ordered the appellant be re-tried “on the new charge” before another Magistrate. The appellant has further appealed to this Court.
Upon the appeal being called, counsel for the respondent has submitted that the appeal is not properly before the Court and should be struck out. He argues that in fact there is nothing before the Court, because the appellant has not made his appeal in the form of a petition as required by section 315 of the Criminal Procedure Ordinance (Cap. 10), which he points out applies by virtue of the provisions of section 325 to appeals presented to this Court by a person aggrieved by a decision of the Supreme Court in its appellate jurisdiction under Part VIII of the Ordinance.
Whilst we agree with him that the correct form in which to make such an appeal is by petition as prescribed in section 315 of the Criminal Procedure Ordinance, and that the forms given in Appendix C to the West African Court of Appeal Rules, 1937, are inapplicable, we do not agree with his argument that there is nothing before us. We have before us an appeal, albeit in the wrong form, filed in pursuance of the right conferred by section 324 of the Ordinance, and filed within, the time prescribed by section 325.
But counsel for the Crown further argues that since section 315 imposes a statutory requirement as to the form of the petition, failure to comply with it is fatal and must involve the striking out of the appeal. As we understand the decisions of the Privy Council upon questions of this nature, a failure to comply with statutory provisions will fall into one of two categories. The objection may be in limine, that is to say it may go to the jurisdiction, as it did in the case of Ohene Moore v. Akesseh Tayee (1 W.A.C.A. 242 (in this Court) and 2 W.A.C.A. 43 (in the Privy Council), in which event it is fatal, or it may be merely a matter of procedure or a mere technicality as in the case of Kojo Pon v. Atta Fua (P. C. 1874-1928, p. 95). In the latter event the objection is not fatal and it is within the power and duty of the Court to do substantial justice.
We have therefore to decide into which category the present objection falls. We think that the fact that the provision which has been disregarded is contained in an Ordinance and not in rules or regulations makes no difference in this case because the Ordinance purports to be a procedure ordinance. Actually some of its sections do much more than merely prescribe procedure. Section 324 is a case in point; that section actually confers a right of appeal and it is from it that this Court derives its jurisdiction to hear appeals such as the present; on the other hand some of the sections deal with matters of procedure pure and simple and we think that section 315 is such a section. It follows that, in our view, an objection based on a failure to comply with its provisions is not an objection which lies in limine, and the failure does not operate to deprive this Court of jurisdiction to hear the appeal, or the appellant of his right to appeal conferred by section 324.
For these reasons we decided to give the appellant an opportunity to amend the form of his appeal that it is in the form of a petition.
JUDGMENT.
In our view the statement of the powers of the Supreme Court under section 319 (1)(a)(i) of the Criminal Procedure Code as set out in the case of C.O.P. v. Ayiku (5 W.A.C.A. 89) applies to this case and we have no doubt that under the provisions of that section the Supreme Court (and on appeal therefrom, this Court) has power to order a re-trial, as one of the alternatives to acquitting or discharging the accused, after reversing the finding and sentence.
The only error in this case in the Supreme Court is that the learned Judge omitted, obviously by an overnight, formally to order that the finding and sentence be reversed, before ordering the re-trial.
We accordingly substitute for the order made by the learned Judge in the Supreme Court, the following order:
“It is ordered that the finding and sentence be reversed and that the appellant be re-tried on the new charge by another Magistrate.”
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