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REX
V.
NOKU OF YUSA
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
26TH DAY OF OCTOBER, 1940
2PLR/1940/45 (WACA)
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OTHER CITATION(S)
2PLR/1940/45 (WACA)
(1940) VI WACA PP. 203 – 205
LEX (1940) – VI WACA PP. 203 – 205
BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST (GHANA)
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
REX — Respondent
AND
NOKU OF YUSA — Appellant
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REPRESENTATION:
Appellant not present nor represented
Reece for Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE — PROOF OF CRIME:- Appellant tried and acquitted on charge of murder —convicted at a subsequent trial of committing an act intended to cause grievous harm contrary to section 332(1) C.C. on the same facts — Question as to operation of section 58(1) of Cop. 20 to substantiate plea of “autrefois acquit” — How treated
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
On a charge of Murder the provisions of section 58(1) of Cap. 20 do got enable the Court to convict the accused of committing an act intended to cause grievous harm. Since, therefore, accused was not in jeopardy on the lesser charge at the first trial, he could not plead “autrefois acquit” at the second trial.
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MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, O.J., SIERRA LEONE
The Appellant in this case was first tried by Ames, Assistant Judge on a charge of murdering one Ayir. In the opinion of the Judge the charge of murder, had it been established, would have come within section 316(2) and (3) of the Criminal Code.
The material parts of that section are as follows:
“316. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:
(1) … … … … … … … … … … … … …
(2) if the offender intends to do the person killed or to some other person some grievous harm;
(3) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such nature as to be likely to endanger human life;
(4)-(6) … … … … …
is guilty of murder.”
The Trial Judge found that the prosecution had failed to prove adequately that the wounding inflicted by the appellant was the case of death of Ayir and accordingly held that the appellant was not guilty of the murder of that person.
After acquitting the appellant of the murder of Ayir the Judge gave orders that resulted in the appellant being charged with “committing an act intended to cause grievous harm contra section 332(1) of the Criminal Code.” The same Judge tried him summarily on that charge and convicted him. The Judge granted a certificate that the case was a fit one for appeal by the accused upon the following grounds:
“The charge was based on the same acts and omissions as those which together with the additional fact of the victim’s death had been the basis of a charge of murder against Noku in a separate and previous case at this Session and at the trial of that case Noku was found not guilty of murder and acquitted.”
Mr. Reece, Crown Counsel, who appeared for the Crown at the hearing of the appeal stated that he could not support the conviction because accused had been charged with murder and acquitted on that charge. He submitted that on the charge of murder the appellant could have been found guilty, by reason of section 58 of the Criminal Procedure Ordinance, of committing an act intended to cause grievous harm as that formed part of the charge of murder and as he, the appellant, had been acquitted on the charge of murder and had not been convicted of the commission of an act intended to cause grievous harm of which he had stood in jeopardy on the charge of murder he was entitled to rely on the plea of ” autrefois acquit” and that the conviction was therefore wrong.
It is hardly necessary to point out that before a person can be convicted of murder it must be proved that some person has been unlawfully killed. Until that fact has been first established it is unnecessary and in fact impossible for the Court to consider whether the person alleged to have been killed was killed by the accused under any of the circumstances mentioned in section 316 of the Criminal Code. It is difficult to imagine a more complete and successful defence to a charge of murder than the production alive in Court of the person alleged to have been murdered. If that should happen it would be difficult to imagine Counsel for the prosecution contending that, at all events, part of the crime of murder had been proved.
In our opinion it is impossible, in the absence of any proof that appellant killed Ayir, to hold that any part of the charge of the murder of Ayir was proved. We are of the opinion that the appellant was never in jeopardy at the first trial of conviction for the offence of causing grievous harm and that the contention or autrefois acquit based on the provisions to section 58 of the Criminal Procedure Ordinance could not be upheld.
We now pass to the consideration of the question whether appellant having been acquitted on the charge of murder should although he could not have been convicted at the first trial of causing grievous harm, have been tried for that offence seeing that it was based on the same acts and omissions in respect of which the previous acquittal was made.
In the case of William Barron 10 C.A.R. 81 the Court of Criminal Appeal held that the true test on which the plea of autrefois acquit depends is not whether the facts are the same in both trials but whether the acquittal on the first charge necessarily involves an acquittal on the second charge. This in our opinion is a concise statement of the test that should be applied.
Having come to the conclusion that the acquittal on the first charge did not necessarily involve an acquittal on the second charge we are satisfied that the plea of “autrefois acquit” could not succeed on the ground upon which the Judge’s certificate was granted, namely, that the facts were the same in both trials.
The appeal is accordingly dismissed.
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