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GANIYU ADISA MOTAYO
V.
THE COMMISSIONER OF POLICE (1)
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
20TH DAY OF JANUARY, 1950
2PLR/1950/34 (WACA)
OTHER CITATION(S)
2PLR/1950/34 (WACA)
(1950) XIII WACA PP. 4-5
LEX (1950) – XIII WACA 4-5
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
RHODES, J.
BAIRAMIAN, J.
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BETWEEN:
GANIYU ADISA MOTAYO – Appellant
AND
THE COMMISSIONER OF POLICE – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CR.APP. 3131.
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REPRESENTATION
J. E. C. Dabid — for Appellant
Lloyd, Crown Counsel — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Conviction in Magistrate’s Court — Power of Supreme Court on appeal to order re-trial — Section 43 of the Magistrate’s Courts (Appeals) Ordinance (Cap. 123) considered.
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CASE SUMMARY
On an appeal from a conviction by the Magistrate’s Court the Supreme Court ordered a re-trial in the Magistrate’s Court. The power to order a re-trial is conferred by section 43 of the Magistrate’s Courts (Appeals) Ordinance (Cap. 123). Counsel for the appellant argued that, notwithstanding this provision, there being no question of the original trial being a nullity, an order for re-trial was contrary to the common law principle that no man should be tried twice for the same offence.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
1. The powers of the West African Court of Appeal are in accordance with those of the Court of Criminal Appeal in England, both of which go no further than securing that where the original proceedings are a nullity the Court may order the appellant to be tried. In such circumstances there is no question of a re-trial, for there has been in law no previous trial.
2. However, section 43 of the Magistrate’s Courts (Appeal) Ordinance refers to an order by the Supreme Court for re-trial, thereby recognising the fact that where a person has been tried he may be re-tried.
3. The Legislature clearly intended that the Common Law principle should be disregarded and the order for re-trial by the Supreme Court was confirmed.
Case referred to:
(1) Rex v. Crane, (1921), A.C. 299, at 319.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C.J.
In this case Hubbard, J. on the hearing of an appeal from conviction in a Magistrate’s Court ordered the appellant to be re-tried by the Magistrate’s Court, a Court of competent jurisdiction.
The power to order an appellant to be re-tried is conferred by section 43 of the Magistrate’s Courts (Appeals) Ordinance (Chapter 123). It is argued on behalf of the appellant, however, that to order a re-trial in the present case, when there is no question of the original trial being a nullity, is contrary to the common law principle that no man should be tried twice for the same offence, and Counsel referred to section 12(5) of the West African Court of Appeals Ordinance (Chapter 229) and to the general principle of the common law as set out by Lord Finlay in R. v. Crane (1).
It is clear that at Common Law no man may be re-tried for the same offence, and that this principle is in no way infringed either by the West African Court of Appeal Ordinance nor by the practice of the Court of Criminal Appeal in England, both of which go no further than to secure that where the original proceedings were a nullity the Court may order the appellant to be tried. There is in those circumstances no question of a re-trial, for there has been in law no previous trial.
The provisions of section 43 of the Magistrate’s Courts (Appeals) Ordinance, however, refer to an order for the appellant to be re-tried, clearly recognizing the fact that he has already been tried but, nevertheless, empowering the Judge to order a second trial.
In our view the legislature clearly intended that in such cases the Common Law principle should be disregarded and a second trial be permitted, should the Judge in his discretion so order. No grounds have been put forward to show that the learned Judge in this case erred in the exercise of this discretion, and even though any one of us might not have exercised his discretion in the same way had he been hearing the original appeal; we see no reason to interfere with the Judge’s exercise thereof, nor any reason to say that he exercised it wrongly.
The appeal is therefore dismissed and the order for re-trial will stand.
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