Ganiyu Adisa Motayo V. The Commissioner Of Police (1950)

LawGlobal Hub Judgment Report – West African Court of Appeal

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.

Facts

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.

Held

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.

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. The Legislature clearly intended that the Common Law principle should be disregarded and the order for re-trial by the Supreme Court was confirmed.

The appeal is therefore dismissed and the order for re-trial will stand.