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MOSES OKORO
V.
INSPECTOR-GENERAL OF POLICE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
16TH DAY OF NOVEMBER, 1953
APPEAL NO. 83/1953
2PLR/1953/51 (WACA)
OTHER CITATION(S)
2PLR/1953/51 (WACA)
(1953) XIV WACA PP. 370-371
LEX (1953) – XIV WACA 370-371
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
VERITY, C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
MOSES OKORO – Appellant
AND
INSPECTOR-GENERAL OF POLICE – Respondent
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ORIGINATING COURT(S)
Appeal by convicted person: from decision of the Supreme Court, Warri Judicial Division sitting upon the judgment of the Magistrate’s Court of the Warri Magisterial District
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REPRESENTATION
D. O. Ibekwe — for Appellant
C. A. Burton, Crown Counsel — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE – POLICY PUBLICY:- Criminal Code, section 100 — Charge not alleging defendant employed in public service
CRIMINAL LAW AND PROCEDURE: Appeal in Criminal Cases — West African Court of Appeal Ordinance, section 12(5) — Trial a nullity-Powe, to order trial not used — Amendment of charge not possible on appeal.
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CASE SUMMARY
Section 100 of the Criminal Code provides that:-
“Any person who, being employed in the public service, receives any property or benefit of any kind for himself, on the understanding, express or implied, that he shall favour the person giving the property or conferring the benefit, or any one in whom that person is interested, in any transaction then pending, or likely to take place, between the person giving the property or conferring the benefit, or any one in whom he is interested, and any person employed in the public service, is guilty of a misdemeanour, and is liable to six months’ imprisonment.”
Section 12(5) of the West African Court of Appeal Ordinance provides that:-
“Where the Court of Appeal is of opinion that the proceedings in the trial Court were a nullity, either through want of jurisdiction or otherwise, the Court may order the appellant to be tried by a court of competent jurisdiction.”
The appellant was convicted by a Magistrate of an offence under section 100 of the Criminal Code on a charge which did not allege, as it should have done, that he was a person employed in the public service. He raised this point for the first time in his further appeal. Amendment of the charge, was admittedly no longer possible: he could not be asked to plead to the charge if amended or be given an opportunity of recalling witnesses to examine them again if he so wished, as laid down in the Criminal Procedure Ordinance, sections 164 and 165 (cf. Eronini v. The Queen, ante: Editor).
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (while declaring the trial a nullity) that:
(1) The appellant was arraigned on a non-existent charge, which could not be amended on appeal, and the trial was a nullity.
(2) An order for trial was not imperative and would not be made under section 12(5) of the West African Court of Appeal Ordinance as the only charge before the Court was bad.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
The appellant was charged with an offence, expressed to be laid under section 100 of the Criminal Code. The case came for trial before the Magistrate’s Court of the Warri Magisterial District, and he was convicted and sentenced to pay a fine of £30 or 3 months’ imprisonment with hard labour.
He appealed against the conviction to the Supreme Court, Warri Judicial Division, which dismissed the appeal, and the appellant then lodged an appeal to this Court.
When the case came for hearing before us appellant’s counsel argued that the conviction was bad in law because the charge did not contain an essential element of the offence created by section 100 of the Criminal Code, that is to say it did not allege that he was a person “employed in the public service”. This point was not raised in the trial Court or on the appeal before the Supreme Court.
Counsel for the respondent conceded, firstly, that an essential element of the offence created by section 100 had been omitted from the charge, and secondly, that the omission was not such as could now be cured by an amendment because it would not be possible to comply with the provisions of sections 164 and 165 of the Criminal Procedure Code which lay down the procedure to be followed in cases where the Court permits or directs an amendment to the original charge.
Section 100 only applies where the acts therein mentioned are committed by a person employed in the public service, and as the appellant was not so charged an essential element of the offence was clearly omitted. We agreed with learned counsel for the respondent that the omission was not such as could be cured by amendment in this Court, foe the reasons given by him.
Since the appellant was arraigned on a non-existent charge we took the view that the trial must be regarded as void ab initio, and we accordingly declared the trial to be a nullity, a course which this Court is empowered to take by sub-section (5) of section 12 of the West African Court of Appeal Ordinance.
It is the case that the sob-section also empowers the Court to order the appellant in such a case to be tried by a Court of competent jurisdiction, but the sub-section is permissive, not mandatory, on the point and we abstained from making such an order because the only charge before us was the one already referred to, which, for the reasons stated, we held to be bad.
Trial declared a nullity.