Usuman Acida V. The King (1950)

LawGlobal Hub Judgment Report – West African Court of Appeal

Power of a Judge to set aside the decision of a Native Court and to order a re-trial—Exercise of such power in respect of Mohammedan Courts under section 5 (2) of the Native Courts Ordinance—Attorney-General’s direction to Supreme Court to review under section 5 (1) of such Ordinance not necessary in homicide cases—Interpretation of the word ” decision ” in section 5 (2)—Judge empowered to review both conviction and sentence—Meaning of words ” not satisfactory ” in section 5 (2)—Judge’s discretion not unfettered—Any wide divergence of penalty between that inflicted and that prescribed by Criminal Code is unsatisfactory and calls for reiew.

Facts

The appellant was convicted of murder by the native Mohammedan Court and sentenced to five years’ imprisonment, the question, according to the native law and custom, whether death penalty should be imposed being in most cases dependent upon the election of the next of kin of the deceased.

He did not appeal, but the proceedings were sent to the Supreme Court for review in accordance with the provisions of section 5 (2) of the Native Courts Ordinance. Hubbard, J., set aside the decision of the Sultan’s Court and ordered a re-trial before himself. At the trial the appellant was charged with and convicted of murder and sentenced to death.

The question for this Court to decide was whether the Judge had power to set aside the decision of the Native Court and order a re-trial, and further, whether he exercised these powers correctly. In the course of the arguments the meaning of the word ” decision ” was discussed, and also the construction to be placed upon the words ” unsatisfactory trial “, which appear in section 5 (2) of the said Ordinance.

The Court also considered whether the intervention of the Attorney-General was necessary before the Supreme Court exercised its powers to review and to order re-trial, and the circumstances in which such powers should be exercised.

Held

In homicide cases the Supreme Court was empowered to review and to order a re-trial and a direction by the Attorney-General was not a pre-requisite to the exercise of such powers. The powers were exercisable when the trial was not satisfactory and applied in respect to any ” decision ” of the trial Court.

The word decision includes ” sentence “. A trial is unsatisfactory where the penalty inflicted widely diverges from that prescribed by the Criminal Code. If a Judge feels constrained to hold that the decision is unsatisfactory he has no further discretion and it becomes mandatory upon him to set aside the Native Court’s decision.

Appeal dismissed.