Isaiah Onuoha & Ors V. Commissioner Of Police (1947)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Procedure—Appeal from Magistrate—Case remitted to Magistrateto take further evidence and adjudicate afresh—Formal order incorrectly drawnup—Fresh (correct) order made in chambers—Adjudication on appeal withoutthe further evidence—Magistrates Courts (Appeals) Ordinance, section 41—Nullity of proceedings before Magistrate and appellate Judge.
The events leading to this appeal are fully set out in the judgment.
A Court is not competent to correct in chambers an incorrect formal order proceeding from an order made in Court, without notice to the parties, and any proceedings under the corrected order are a nullity.
Appeal from the Supreme Court of Nigeria (Appellate Jurisdiction). Odunsi for Appellants.
Briggs, Crown Counsel, for Respondents.
The following joint judgment was delivered:
This is an appeal from a judgment of the Supreme Court affirming a conviction in the Magistrate’s Court, Aba, on a charge of obtaining money by false pretences contrary to section 419 of the Criminal Code.
The grounds of appeal are voluminous but there is only one with which this Court is immediately concerned. This ground is based upon the fact that; at the first hearing of the appeal, the learned Judge of the Supreme Court made a certain order of reference to the Magistrate, that the terms of the order served upon the Magistrate were not those pronounced in open Court and that the learned Judge upon having this brought to his attention treated the whole reference as a nullity and determined the appeal as if no reference had been made and no proceedings had thereunder.
It appears that during the course of the hearing in the Court belokv Counsel for the appellant applied for an Order for additional evidence to be taken. According to the record as transmitted to this Court the learned Judge then held that
” In order that justice be done to the appellants and every opportunity be given them . . . I refer the case back to the Magistrate . . . to take such evidence and to adjudicate afresh after taking such evidence.”
An Order in these terms was served upon the Magistrate who took the evidence, adjudicated afresh and again convicted the appellant. Objection was taken before him by Counsel for the appellants that the formal Order was not in the terms of the Order as pronounced in Court, but the Magistrate rightly considered himself bound by the Order served upon him and proceeded to carry it out.
The matter then came again before the Supreme Court although it appears that the prosecuting officer submitted that it was not properly before the Court, apparently upon the ground that there had been a fresh adjudication and there should have been a fresh appeal. Be that as it may, the learned Judge proceeded with the hearing of the appeal and Counsel for the appellants again submitted that the Order under which the Magistrate had proceeded to take additional
evidence and adjudicate afresh was not the Order made in Court, and argued that this ” vitiated all other proceedings “.
The learned Judge thereafter delivered judgment dismissing the appeal, in the course of which he disclosed that the order made by him at the close of the previous hearing was in fact:—
“• I refer the case back to the Magistrate . . . to take such evidence and to adjudicate afresh after taking such evidence and to report specific findings of fact for the information of the Court.”
The judgment proceeded:-
” The Order was drawn up and subsequently I found the same was wrong after it had been served upon the Magistrate. A new Order was made not in Court but in Chambers by deleting the words ‘ and to report specific findings of fact for the information of the Court ‘.”
The learned Judge therefore found himself bound to agree with the submission of Counsel, held that the subsequent proceedings were a nullity and, expressing the view that ” the position is in state quo ante ” , that is to say ” as it was before the application was made “, proceeded to determine the appeal as if no application had been made and no order whatever passed thereon. In other words, having previously held that the taking of additional evidence was necessary ” in order that justice be done ” he proceeded to determine the appeal without such evidence.
In the first place it is clear that the Order pronounced in Court was wrong, as the Judge himself found.
Section 41 of the Magistrates’ Courts (Appeals) Ordinance, under which he purported to make this Order, provides that when the Appeal Court considers it necessary that evidence should be adduced it may:-
- order such evidence to be adduced before the Court on some day to be fixed in that behalf.”
This was the application made by the appellants, but it appears to have been rejected by the Appeal Court which then proceeded to deal with the application as though made under the second provision of the section which reads:—
- refer the case back to the Magistrate to take such evidence and may in such case either direct the Magistrate to adjudicate afresh after taking such evidence . . . or direct him after taking such evidence to report specific findings of fact for the information of the Court . . . “
There are in such case two courses, either of which the Appeal Court may follow. The Order as pronounced in Court purported to follow both. As neither is consistent with the other the Order was obviously bad. It was not competent, however, for the Court below to correct its error by drawing up a fresh order in chambers and without notice to the appellants and the Order so drawn and all proceedings thereunder are a nullity.
The position is, therefore, that the appeal has never been determined nor has any valid order been made upon the application to adduce additional evidence. Not only were the subsequent proceedings before the Magistrate void but the consequent re-hearing before the Supreme Court was also a nullity and this could not be cured by the learned Judge treating the matter, as he purports to do, as if no application for additional evidence had been made and proceeding to determine the appeal without evidence which he had considered necessary in order that justice may be done.
Counsel for the appellant asks this Court to allow the appeal not only as against the judgment of the Supreme Court but also as against the convictions in the Magistrate’s Court, on the ground that the interests of the appellants have been so prejudiced by the irregularity of the proceedings in the Court
below that there has been a miscarriage of justice which would be perpetuated
were they to be called upon to submit to fresh proceedings in the Court below.
With this view we are unable to agree. Had the appellants either taken steps to set aside the defective order and to substitute a proper order therefor, or had they raised no objection to the order irregularly substituted.therefor, the appeal might have proceeded to a final and just conclusion without any prejudice whatever to the appellants. Although, objection having been brought to our notice on appeal, we are unable to hold that the proceedings were valid, we are not of the opinion that the appellants will suffer injustice if the case be remitted to the Court below in order that the appeal therein may be heard.
The Court may either make such order as the Court below might have made on the application to adduce fresh evidence and direct the proceedings to be continued from that point, or it. may direct that the appeal be heard de novo before the Supreme Court. In all the circumstances we think it more desirable that the latter course be pursued.
The appeal is therefore allowed to this extent: that the judgment of the Supreme Court herein be set aside, the proceedings therein not having been heard and determined according to due process of law, and that the appeal therein be re-heard. Should the appellants desire to renew their application to adduce additional evidence the Court below will be at liberty to deal with any such application in such manner as it may think fit within the provisions of the relative enactment, unhampered either by any consideration of the previous proceedings in that Court or by any expression of opinion by this Court upon the merits of the case.
Appeal allowed to the extent specified in the judgment.
