Okafor Umeze & Ors. V. The State (1973)
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A. G. IRIKEFE, AG. J.S.C.
The eight appellants in this case were tried for the murder of one Inyang Idim (m) by the High Court of the South Eastern State (Ete J.) and sentenced to death on 1st March, 1973. The trial was held in the Ikot Ekpene Judicial Division of the State. This appeal was brought against the conviction and sentence aforesaid and before us, Chief F. R. A. Williams who represented the appellants, obtained leave to advance argument on several grounds of appeal dealing with the merits of the case.
At the close of his submissions and, in the light of the statement made by Mrs. N. L. Isikalu, Director of Public Prosecutions, South-Eastern State, it became clear that this appeal must succeed on the issue of jurisdiction raised on behalf of the appellants.
The Director of Public Prosecutions of the South-Eastern State in her reply indicated that she was not supporting the committal of the appellants because:
(a) The committal proceedings were a nullity in that the Uyo Magistrate had no jurisdiction to entertain same.
(b) The subsequent trial in the High Court was also a nullity; and
(c) That section 70 (1) of the Criminal Procedure Code (Cap. 43, Laws of the Federation of Nigeria, 1958) could not have validated the proceedings before the Magistrate.
In the light of the foregoing, we invited arguments from counsel on the type of order we should make in this appeal bearing in mind the fact that a trial was ordered in R. v. Sodipo (1948), 12 W.A.C.A. page 374. Learned counsel for the appellants submitted that the Court should merely declare the proceedings null and void and leave it at that. Alternatively, it was submitted that to order a trial now would be an infringement of section 22 (2) of the Constitution which provides that:-
“Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court.”
Finally, it was submitted that if the Court were disposed to order a trial, it should also order that same be held early. On behalf of the State, the Director of Public Prosecutions submitted that the decision as to whether to order a trial or refrain from doing so was in the absolute discretion of the D. P. P., and drew our attention to two English decisions-
(a) D.P.P. vs. Crane (1921) 15 Cr. App. R. page 183 where the House of Lords affirmed a trial order made by the Court of Criminal Appeal and
(b) R. vs. Golathan (1916) 11 Cr. App. R. page 79 where the Court of Criminal Appeal merely allowed an appeal declaring the original trial a nullity but refused to order a new trial.
We are of the view that as the committal proceedings in this case were, as stated by both sides, vitiated by a defect in jurisdiction, we should not be drawn into interpretation of section 22 (2) of the Constitution and we proposed on the authority of The Attorney-General v. The African Press Ltd. and Anor. (1965) N.N.L.R. page 158 merely to declare the entire proceedings and trial a nullity and allow the appeal.
Appeal is allowed. The prosecution may, if they so desire, get the appellants tried before a court of competent jurisdiction in accordance with law.
Other Citation: (1973) LCN/1693(SC)
