Alphonsus Oruche Vs Commissioner Of Police (Northern Region) (1963)

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BAIRAMIAN, F.J. 

The appellant complains of the decision of the High Court, Northern Region, given on 6th December, 1961, in his appeal from the Magistrate, who convicted him of dishonestly converting, in June 1960, #900 which the Tiv Native Authority had entrusted to him to pay the U.A.C.

The charge was laid as a criminal breach of trust contrary to section 312 of the Penal Code, which, however, did not come into force until 30th September, 1960.

That fact was overlooked when the appellant was brought before the Magistrate in February, 1961. In the High Court both sides agreed that it was wrong to charge the appellant under the Penal Code, but his counsel argued that as he had been in custody since 21st August, 1961, serving the sentence imposed by the Magistrate, it was not a case for an order for retrial.

The High Court observed that in practice account was taken of the period spent in custody upon conviction after retrial, and as there was a substantial case against the appellant, it was proper to order a retrial; and the High Court so ordered. Hence this appeal from that Court.

There are seven grounds of appeal; they all attack the order of retrial as being wrong in law, briefly put, for these reasons:-
(1) In view of the decision in Moses Okoro v. Inspector General of Police, 14 W.A.C.A. 370;
(2) Because the appellant had served part of the sentence wrongfully imposed by the Magistrate;
(3) Because, in view of section 21 (7) of the Constitution of the Federation, a retrial would be wrongful and oppressive;
(4) Because it was outside the powers conferred by section 48 of the High Court Law, N.R.;
(5) Because a retrial for an offence under the Criminal Code is a mistake in view of section 7 of the Penal Code Law;
(6) Because the order is bad having regard to section 21 (4) of the said Constitution;
(7) Because no regard was had to the decision in Abodundu and others v. The Queen, 19594 F.S.C. 70.
The arguments for the appellant under those grounds raise these questions:-
(a) whether it would be possible to have the appellant charged with an offence under the Criminal Code seeing that it was repealed and ceased to be in force in the Northern Region on 30th September, 1960;
(b) whether ordering a retrial was not going contrary to the decision in Moses Okoro v. Inspector-General of Police and to Abodundu v. The Queen; and
(c) Whether it was not wrong to order a retrial in the case of a person (i) who had served part of his sentence, and (ii) about whom it was said that there was a substantial case against him.

On question (a): The Court has already decided that, in respect of an act done before the 30th September, 1960, the charge should be laid under the appropriate section of the Criminal Code, and can be prosecuted thereunder after that date, and that the Criminal Code survives in the Northern Region after that date for the purpose of such prosecutions: The Queen v. Tuke, 1961 1 All N.L.R., 258; The Queen v. Sheriff Bukar, F.S.C. 100/1961, judgement delivered on 3rd November, 1961. There is no need to repeat what was said in those cases. That disposes of the arguments attributable to grounds 4 and 5.
No particular argument was advanced under ground 3, which refers to section 21 (7) of the Constitution. That provides that:-
“(7) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.”
Consequently, the appellant could not have been tried under section 312 of the Penal Code. The argument is that he should not be tried under the Criminal Code either. It is convenient to quote subsection (8) of the said section 21; it reads:-

“(8) No person who shows that he has been tried by any competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court; and no person who shows that he has been pardoned for a criminal offence shall again be tried for that offence.”
The Constitution clearly contemplates that an order of retrial may be made. That does not sin against the provision in sub section (4) of the said section 21, which reads:-

“(4) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty:
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
The argument under ground (6) is that the appellant cannot have a fair trial  any more because the High Court said in its judgement that “the evidence as a whole discloses a substantial case against the appellant, and that, therefore, this is a proper case in which to order a retrial.”

The High Court used those words by way of giving its reason for ordering a retrial. In effect, that Court meant this: if there was no substantial case, we would not order a retrial: we order it because there is. The Court was careful to order that the retrial should be before another Chief Magistrate. We have no doubt that he will deal with the case with an open mind upon the evidence adduced before him. Within our experience the previous conviction does not affect the mind of the second Magistrate. The Court does not accept the argument under ground (6): it virtually means that there can never be an order of retrial. In other words, a person whose trial was a nullity must not be tried for the offence which he may have committed under the appropriate enactment.

The Court thinks that there is no substance in ground (2). Being in custody for less than four months is not enough reason for not ordering a retrial. If the appellant is convicted, he can ask the convicting magistrate to take that into account.

It is hard to understand ground (7), which refers to Abodundu v. The Queen. There the Court stated some rules of practice for guidance in ordering a retrial. One of them is that it should appear that there is a substantial case against the appellant; which is precisely what the High Court said in the case in hand.

Moses Okoro v. Inspector-General of Police is mentioned in ground (1) apparently as authority for the argument that, if the trial is a nullity through a defect in the charge, there should be no retrial. Okoro was tried under section 100 of the Criminal Code; the charge should have alleged that he was a person employed in the public service; it did not so allege. The court of appeal held that the trial was a nullity but did not order a fresh trial because the only charge before the court was one that was bad. Some words would have had to be added, but amendwment was not possible on appeal; apparently the court thought that it was pointless to order a trial on a charge that was bad. Okoro was decided in November 1953.

It is desirable to point to Anu v. Inspector-General of Police, 3 F.S.C. 34, where Okoro is mentioned at page 35 with an implication of doubt; also to the judgement in The Queen v. Ijoma F.S.C. 309 1961, decided on 7th July, 1962, in which R v. McVitie, [1960] 2 Q.B.483;44Cr. App. R201 is cited and followed. The court of appeal in Okoro’s case did not have the advantage of McVitie, which was decided in 1960. In any event, there are points of difference. The charge in Okoro’s case was laid under a section appropriate to the offence alleged; it was, however, a defective charge in its particulars of the offence. Here the charge was laid under an enactment which did not apply: it is not merely a question of defective particulars. Okoro’s case is irrelevant to the circumstances of the case in hand.

The Court is of opinion that there is no substance in the arguments, and the grounds of appeal fail. The appeal is therefore dismissed, and the order of retrial is confirmed.

Other Citation: (1963) LCN/1051(SC)