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REX
V.
KALU UKOHA AND BRAIMOH
THE WEST AFRICAN COURT OF APPEAL COURT, HOLDEN AT LAG0S, NIGERIA
30TH DAY OF APRIL, 1941
2PLR/1941/62 (WACA)
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OTHER CITATION(S)
2PLR/1941/62 (WACA)
(1941) VII WACA PP. 33 – 34
LEX (1941) – VII WACA PP. 33 – 34
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J. SIERRA LEONE
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BETWEEN:
REX – Respondent
AND
KALU UKOHA AND BRAIMOH – Appellant
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ORIGINATING COURT(S)
APPEAL FROM CONVICTION BY HIGH COURT
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ORIGINATING COURT(S)
C. W. Reece — for the Crown
W. Wells Palmer — for first Appellant
Second Appellant present
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Conviction for contempt of Court for lying and prevaricating contra section 41(1)(b) of Criminal Procedure Ordinance – Provisions conviction of section 42 of that Ordinance not observed – Accused not given opportunity to say anything in answer to a charge of perjury.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that: Appeal allowed, convictions and sentences quashed.
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MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA; PETRIDES, C.J., GOLD COAST; GRAHAM PAUL, C.J., SIERRA LEONE.
In this case, at the close of a Criminal Prosecution against one Jimoh Amodu before Jackson J. in the High Court of the Warri Judicial Division, the two appellants were called upon by the trial Judge to show cause why they should not be committed to prison as for a contempt of court for lying and prevaricating. There was no suggestion at that time that either of the appellants had committed perjury.
The learned trial Judge heard what each appellant had to say and heard the evidence of other witnesses; if, after doing so, he had then committed the appellants to prison for contempt of court by lying and prevaricating, it is difficult to see how such orders of committal could be successfully questioned in this Court. But the learned trial Judge did not do this. Instead he recorded the following:
”I sentence Kalu Ukoha and Braimoh each to four months I.H.L. under the provision of section 41 (b) of the Criminal Procedure Ordinance.”
It should be section 41(1)(b).
Now it is an essential condition precedent to a committal under the said section 41(1)(b) that it shall appear to the Court that the person has been guilty of perjury, and section 4 provides that—
”Before committing a person to prison or imposing a fine on any person under the last preceding section, the Court shall ask such person if he has anything to say why sentence should not be passed on him, and shall record his answer in full.”
It is clear that this means that the person must be asked if he has anything to say why sentence should not be passed upon him as for a contempt of Court by committing perjury. In other words it must be clearly intimated to him that he is charged with perjury, the assignment or assignments of perjury must be specified and he must be given an opportunity of showing that the charge cannot be supported, as well as urging anything he may wish to do by way of mitigation if he admits the charge.
The provisions of this section 42 were not observed in the present proceedings; until the moment that sentence was passed there was no suggestion that either of the appellants had committed perjury, and neither of them was giver any opportunity to say anything in answer to a charge of perjury. For this reason the orders of committal cannot be supported.
The appeals of both appellants are allowed the convictions and sentences are quashed and it is directed that in the case of each of the appellants a judgment and verdict of acquittal be entered.
The appellants are discharged.
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