Rex V. Tita Fokum (1941)

LawGlobal Hub Judgment Report – West African Court of Appeal

Order of transfer made after conviction contra. Ordinance No. 8 of 1938—High Court proceedings a nullity.

Held : Appeal allowed, conviction quashed.

C. W. Reece for Crown.

Appellant not present.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, BUTLER LLOYD AND BAKER, JJ.

This is an appeal from the High Court of the Calabar-Aba Judicial Division, holden at Bamenda with Jeffreys, Acting Assistant Judge, presiding.

The case came before the High Court on an order of transfer made by Dr Jeffreys in his capacity as a District Officer under section 25 (1) (c) of the Native Courts Ordinance (No. 44 of 1933). This order of transfer was made after the Native Court had convicted the appellant and sentenced him to a term of imprisonment. Such an order could have been made during the period after the enactment of the amending Ordinance No. 16 of 1936 and before the enactment of the firther amending Ordinance No. 8 of 1938. This last amending ordinance took out of the paragraph the words ” or after sentence is passed or judgment is given,” and thereafter such an order could not be made. The order of transfer in this case was made on the 17th October, 1940, and it is clear that in making it the District Officer must either have overlooked or misunderstood the effect of the 1938 amendment. The order was, in our opinion, bad and ineffective to transfer the case to the High Court. It follows that all the proceedings in the High Court are a nullity and we so declare them.

The appeal is allowed, the proceedings in the High Court are declared to be a nullity, the conviction in the High Court is quashed and it is ordered that the fine paid by the appellant shall be refunded to him.