Albert Amadi Uzukwu Vs The Queen (1963)

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BREIT, Ag. C.J.F.

The appellant was tried and convicted in the High Court of Eastern Nigeria on a charge of stealing the sum of #995’9710.5d contrary to section 390 (5) of the Criminal Code. After being committed for trial by the magistrate he had been released on bail, and when his case came up for trial in the High Court he first pleaded not guilty, and then applied for an adjournment to enable him to instruct counsel, on the ground that he had only received the notice of trial two days previously. Section 349 of the Criminal Procedure Ordinance lays down that unless the court, for good cause, orders otherwise an accused person shall receive at least three days notice of the date of his trial in the High Court, and contains provisions for the case where an accused person has been admitted to bail and cannot readily be found, by enabling the notice to be left with someone of his household or with one of his bail, or to be affixed to the door of his dwelling house. In the present case the judge recorded that “it is clear that the reason why the notice was served late was that the accused left the address which he gave on the recognizance and had to be traced”, and refused an adjournment without inquiring why none of the alternative methods of service had been adopted.

Section 349 is designed for the protection of an accused person and in the view of the Court it must be complied with strictly. It is submitted on behalf of the respondent that by first pleading to the information the appellant must be regarded, under sections 215 and 217 of the Criminal Procedure Ordinance, as having waived any formal objection to the lack of notice and to have had, at most, a ground on which the judge might, in his discretion, have granted an adjournment, but without deciding what the position in strict law may be we consider that in this case the conviction should be set aside as having resulted from a miscarriage of justice, even if there was not technically a mistrial.
The case appears to be a proper one for ordering a retrial, and the order of this Court will be that the conviction and sentence are set aside and that the appellant shall be retried before another judge of the High Court. If the retrial results in the conviction of the appellant the High Court will no doubt take into consideration, in imposing sentence, the fact that the appellant has already served a period of over seven months as a convicted person.

OTHER CITATIONS: (1963) LCN/1046