Moses Okoro V. Inspector-General Of Police (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law and Procedure-Criminal Code, section 100—Charge not alleging defendant employed in public service.
Appeal in Criminal Cases—West African Court ofAppeal Ordinance, section 12 (5)—Trial a nullity—Power to order trial not used—Amendment of charge not possible on appeal.

Facts

Section 100 of the Criminal Code provides that:—
“Any person who, being employed in the public service, receives any property or benefit of any kind for himself, on the understanding, express or implied, that he shall favour the person giving the property or conferring the benefit, or any one in whom that person is interested, in any transaction then pending, or likely to take place, between the person giving the property or conferring the benefit, or any one in whom he is interested, and any person employed in the public service, is guilty of a misdemeanour, and is liable to six months’ imprisonment.”

Section 12 (5) of the West African Court of Appeal Ordinance provides that:—
“Where the Court of Appeal is of opinion that the proceedings in the trial Court were a nullity, either through want of jurisdiction or otherwise, the Court may order the appellant to be tried by a court of competent jurisdiction.”

The appellant was convicted by a Magistrate of an offence under section 100 of the Criminal Code on a charge which did not allege, as it should have done, that he was a person employed in the public service. He raised this point for the first time in his further appeal.

Amendment of the charge, was admittedly no longer possible: he could not be asked to plead to the charge if amended or be given an opportunity of recalling witnesses to examine them again if he so wished, as laid down in the Criminal Procedure Ordinance, sections 164 and 165 (cf. Eronini v. The Queen, ante: Editor).

Held

(1) The appellant was arraigned on a non-existent charge, which could not be amended on appeal, and the trial was a nullity.

(2) An order for trial was not imperative and would not be made under section 12 (5) of the West African Court of Appeal Ordinance as the only charge before the Court was bad.

Trial declared a nullity.