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SAMUEL OMU
V.
COMMISSIONER OF POLICE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
3RD DAY OF NOVEMBER, 1950
2PLR/1950/36 (WACA)
OTHER CITATION(S)
2PLR/1950/36 (WACA)
(1950) XIII WACA PP. 103-104
LEX (1950) – XIII WACA 103-104
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
VERITY, C.J., NIGERIA
LEWEY, J.A.
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BETWEEN:
SAMUEL OMU – Appellant
AND
COMMISSIONER OF POLICE – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CR. APP. 3301/50
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REPRESENTATION
Alakija — for Appellant
Plange & Williams — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Power of Supreme Court to convict an appellant under a section other than that on which he had originally been charged – Section 43(a)(ii) of the Magistrate’s Courts Appeal Ordinance (Cap. 123) considered – Exercise of such power
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CASE SUMMARY
The appellant was convicted by the Magistrate’s Court of an offence contra section 404(1) of the Criminal Code. The appellant appealed to the Supreme Court which substituted for the original conviction a conviction contrary to section 515 of the said Code.
The arguments in this appeal turned firstly, on the powers of the Supreme Court to substitute a conviction for an offence other than that originally charged, and secondly, if such power existed, whether the Supreme Court had properly exercised its powers.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. Section 43(a)(11) of the Magistrate’s Courts (Appeals) Ordinance gives the Judge an unqualified power to substitute another section for that under which the appellant has been convicted.
2. Although the powers are unfettered, their application should be limited to those cases where the appellant has not been surprised or embarrassed by the change.
3. This Court was not satisfied, in the circumstances of the case, that the ‘substitution could be made without danger of – causing an injustice. The appeal was, therefore, allowed.
Cases referred to:
(1) Commissioner of Police v. Bafuor Kwesi Awuah, 13 W.A.C.A. 1.
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MAIN JUDGMENT
The following Judgment was delivered:
LEWEY, J.A.
This is an appeal by a police constable against his. Conviction by the Magistrate at Warri for an offence under section 404(1)(a) of the Criminal Code.
Brown, J., when he heard the case on appeal to the Supreme Court, decided that the appellant should not, in view of the evidence, have been convicted under section 404(1), and he set aside the conviction on that charge, substituting a conviction under section 515 of the Criminal Code which makes provision· for an offence of which-in the opinion of the Judge-the appellant had clearly been guilty. The Judge purported to effect this substitution by virtue of his powers under section 43(a)(ii) of the Magistrate’s Courts (Appeals) Ordinance (Cap. 123), and the questions which we now have to decide are two, namely:-
(1) Was the learned Judge right in his conclusion that he had power under section 43(a)(ii) of Cap. 123, to convict the appellant under a section other than that under which he had originally been charged?
(2) If the Judge had such power, was it proper for him, in the circumstances of this case, to substitute a conviction under the particular section which he selected, namely, section 515 of the Criminal Code?
As to the first question, it is quite clear, in our view, that section 43(a)(ii) of Cap. 123 gives the Judge an unqualified power to substitute another section for that under which an appellant has been convicted. In the case of Commissioner of Police v. Bafuor Kwesi Awuah (1) this Court approved the power of the Judge to follow such a course by reason of the provisions of paragraph (ii) of section 319(1) (a) of the Gold Coast Criminal Procedure Code, which are identical with the provisions of paragraph (ii) of section 43(a) of the Nigeria Cap. 123. In that case the Court went on to say:-
“The powers conferred by the section are very wide, and we can find in the Code itself no restrictive or qualifying provisions which could have the effect of narrowing them, though they should not, of course, be invoked where such a course would cause any injustice. In the present case we can see no reason for holding that the action of the learned Judge in altering the Magistrate’s finding as he did, worked any injustice to the appellant. The particulars of the offence under section 419A, as set out in the charge, gave the appellant the fullest possible notice of the facts with which he was charged and of the real substance of the charge; and even though the actual charge was laid under a wrong section, it cannot possibly be said that he had not had full notice of the details of the accusation against which he had to defend himself.”
With regard to the second question for decision, however, we have come to the conclusion that, having regard to the evidence in the appeal now before us, we cannot uphold the substitution of the section which the Judge decided was appropriate, namely, section 515 of the Nigeria Criminal Code, as we are not satisfied that the substitution of that particular section could be made without danger of causing injustice to the appellant. For although the terms of paragraph (ii) of section 43(a) of Cap. 123 are, as already indicated, wide and unrestricted, we feel that their application should be limited to these cases where the accused has not been surprised or embarrassed by reason of the provisions of the substituted section. As to this, applying the principle enunciated in Commissioner of Police v. Bafuor Kwesi Awuah, we think that the test should be whether the matters on which the appellant had to defend himself under the original section and under the substituted section, were substantially the same.
Some reference was made by the learned Judge of the Supreme Court to the provisions of section 179(2) of the Criminal Procedure Code in connection with his power to alter the charge upon which the appellant was convicted, and we have listened to an interesting argument by the acting Solicitor-General as to the true scope and meaning of those provisions. But we have not considered it necessary to deal with section 179, as it appears to us that the learned Judge came to the conclusion that it was section 43(a)(ii) of Cap 123 which contained the power to substitute another finding on appeal. We have already indicated our view as to that section, and as to the difficulty of applying it, having regard to the circumstances of this case.
The order is, therefore, that the appeal must be allowed, the conviction and sentence of the appellant quashed, and a verdict and judgment of acquittal entered.
Appeal allowed.
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