Rex V. Terkje & Anor (1949)
LawGlobal Hub Judgment Report – West African Court of Appeal
Case stated under section of Criminal Procedure Ordinance which has been repealed and not replaced.
From and after the passing of the Criminal Procedure Ordinance, 1945 (Cap. 43 in the 1948 Revision of the Laws of Nigeria) which repealed, without re-enacting, section 191 of the former Criminal Procedure Ordinance, there is no power for a Judge of the Supreme Court, sitting at first instance in a criminal proceeding, to reserve a question of law for the opinion of the West African Court of Appeal.
Case stated not entertained.
Lloyd, Crown Counsel, for Crown.
The following judgment was delivered:
Verity, C.J. This is a case stated by Wells Palmer, J., in the course of criminal proceedings before him in the Supreme Court in which two persons were charged with childstealing, abduction and entering a dwelling-house with intent to commit a felony. The learned Judge discharged the accused on the first count and then, as it would appear, without proceeding with the trial on the second and third counts, stated a case as to whether certain earlier proceedings in a Native Court were a nullity and whether the first accused can be tried in the Supreme Court on counts 2 and 3 having regard to such proceedings.
The powers of this Court in regard to reserved questions of law are contained in section 19 of the West African Court of Appeal Ordinance, 1933,* which provides that :-
” The Court of Appeal shall have full power and authority to hear and determine finally any question of law reserved for its consideration under the provisions cf the Criminal Procedure Ordinance.”
At the date of the commencement of the West African Court of Appeal Ordinance procedure in criminal cases was prescribed by the Criminal Procedure Ordinance (Cap. 20), which by section 191 provided that :—
any Judge of the Supreme Court . . . may reserve for the consideration of the West African Court of Appeal, on a case stated by him, any question of law which may arise on the trial by or before such Judge of any person.”
This enactment was repealed by the Criminal Procedure Ordinance, 1945, which makes no provision for a case to be stated to this Court on any question which may arise in the course of a trial. We are of the opinion, therefore, that at the present time a Judge of the Supreme Court has no power to reserve and this Court no power to hear and determine any such questions of law, and that the learned Judge should himself determine any such questions in the proceedings before him, leaving it to the accused persons if put on their trial and convicted to appeal to this Court if they so desire, for the present case stated cannot be entertained.
