Jonah Arisah & Anor V. Commissioner Of Police (1948)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Procedure—Joint trial of persons separately charged—Mereirregularity or nullification of trial.

The following judgment was delivered:

Verity, C.J. This is an appeal from a judgment of the Supreme Court affirming convictions in the Magistrate’s Court, Enugu, on charges of attempted extortion by threats contrary to section 408 (2) of the Criminal Code.

The charges upon which the appellants were convicted passed through many vicissitudes in the course of the hearing in the Magistrate’s Court, by amendment, alteration and addition, but throughout it is clear that they maintained the character of separate charges against each of the appellants individually.

It appears from the record that after arraignment and upon the charges coming on for hearing the police asked that the two cases should be tried together, there being the same facts and the same witnesses. Each appellant was then represented by Counsel, both of whom stated that they had no objection to the police request and agreed that both cases should be tried together. In these circumstances we share the surprise of the learned Judge of the Supreme Court that, upon conviction and appeal therefrom, the appellants should have made this course of procedure a ground of appeal upon which both Counsel based their arguments. It is perhaps equally remarkable that the appellants by their notice of appeal to this Court having abandoned this ground, Counsel who now represents the second appellant should have seen fit to make it an additional ground. More especially is this so when it is considers-d that the error alleged affects matter of procedure only, and has no bearing upon the merits of the case, that it is not even suggested that the appellants have been in any way embarrassed thereby and that the only result of success would be that the original hearing would be declared a nullity and the cases sent back for hearing, at considerable cost to the prosecution and also to the appellants themselves whatever might be the results of the hearing.

We will content ourselves with the above observations and proceed to consideration of the ground of appeal raised in these circumstances. There are other grounds of appeal but as they would not arise were this ground to be upheld it will be convenient to deal with this ground forthwith.

In the first place it is clear that in the circumstances in which the course of procedure followed by the Magistrate was adopted if it be in error and yet no more than an irregularity, then the appellants have by their conduct or that of their advisers waived it, and it can be no ground of appeal, a proposition well established by authority. It has to be considered, therefore, whether the course was in error and if so whether it be no more than an irregularity or whether it be of so grave a nature as to render the hearing a nullity.

Dealing first with the question as to whether the joint trial of the appellants was in error, it is to be observed that there was at no time a joint charge. Each of the appellants was charged in the first instance with attempting to extort L50 from Ephraim Onyekwelu. There was nothing to indicate in either charge that either accused was charged with being concerned jointly with the other in this attempt. The amended charges subsequently put forward were in like terms and made no such indication, nor did the charges to which they were finally asked to plead. In like manner the additional counts added by order of the Magistrate at a later stage in the proceedings and upon which they were convicted, charge each appellant separately with an offence against section 408 (2) of the Criminal Code and again do not indicate that either was jointly concerned with the other in the commission of the offence. The first appellant was charged with committing the offence ” between the 19th and the 22nd day of June, 1947 ” and the second appellant was charged with committing the offence on the ” 21st June, 1947 “. Moreover, examination of the evidence shows that while each appellant is alleged to have made the same demand and upon the same ground there is nothing in the evidence, save the similarity of the demands, to show that there was at any time any connection between the two appellants or that these several demands were in pursuance of a common design. These facts distinguish this case from that of Commissioner of Police v. Danquah (1) in which case although the two accused persons were served with separate summonses it was found that they were jointly charged before the Magistrate and pleaded to a joint charge. The Court in that case, following the decision in the matter of The Stipendiary Magistrate, Brighton (2) and in view of the provisions of section 333 of the Criminal Procedure Code of the Gold Coast, affirmed the conviction. In the present case there was no joint charge: what was done is that two separate charges to which the accused persons had pleaded separately were then tried together. This case falls, therefore, rather within the ruling of this Court in the case of Commissioner of Police v. Amos Fewasrnore (3) in which it was held that where the appellant had been charged separately but was tried together with two other persons who had also been separately charged the trial was a nullity.

This latter decision would appear to dispose of the case in both aspects of the ground of appeal now under consideration, for there is nothing in the Criminal Procedure Ordinance authorising the joint trial of persons charged separately nor is there any such provision as was referred to in Danquah’s case whereby no finding of a Court of competent jurisdiction shall be reversed on account of any error in the proceedings during the trial unless such error has in fact occasioned a failure of justice, having regard to whether objection could and should have been raised at an earlier stage in the proceedings.

We have, therefore, with reluctance in the particular circumstances in which the error in this case arose, reached the conclusion that the course adopted by the trial Magistrate was not authorised nor permitted by law, that the proceedings before him were a nullity, that the convictions and sentences of both appellants must be set aside and that the cases be sent back for trial by a Court of competent jurisdiction. In the circumstances the trial should be before another Magistrate.

We are careful to express no opinion upon the merits of the case and our references to the fact that the particular ground of appeal, with which alone we have dealt, has no bearing on the merits and is not suggested as having embarrassed the appellants are not to be taken as the expression of any opinion upon those ‘merits nor as indicating either approval or disapproval of the conclusions arrived at by the trial Magistrate or of any other matter which has formed a ground of appeal in this case.

Appeal allowed and appellants ordered to be tried.