Rex v. Kalu Ukoha & Anor (1941)
LawGlobal Hub Judgment Report – West African Court of Appeal
Conviction for contempt of Court for lying and prevaricating contra. Appeal fro msection 41 ( 1) (b) of Criminal Procedure Ordinance—Provisions conyiFtionof section 42 of that Ordinance not observed—Accused not tile’ given opportunity to say anything in answer to a charge of perjury.
Held : Appeal allowed, convictions and sentences quashed.
There is no need to set out the facts.
C. W. Reece for the Crown.
W . W ells Palmer for first Appellant.
Second Appellant present.
The following joint judgment was delivered :—
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, GRAHAM PAUL, C.J., SIERRA LEONE.
In this case, at the close of a Criminal Prosecution against one Jimoh Amodu before Jackson J. in the High Court of the Warri Judicial Division, the two appellants were called upon by the trial Judge to show cause why they should not be committed to prison as for a contempt of court for lying and prevaricating. There was no suggestion at that time that either of the appellants had committed perjury.
The learned trial Judge heard what each appellant had to say and heard the evidence of other witnesses; if, after doing so, he had then committed the appellants to prison for contempt of court by lying and prevaricating, it is difficult to see how such orders of committal could be successfully questioned in this Court. But the learned trial Judge did not do this. Instead he recorded the following:—
” I sentence Kalu Ukoha and Braimoh each to four ” months I.H.L. under the provision of section 41 (b) of the ” Criminal Procedure Ordinance.”
It should be section 41 (1) (b).
Now it is an essential condition precedent to a committal under
v.
Kith, ukoha the said section 41 (1) (b) that it shall appear to the Court that the
and Braimoh person has been guilty of perjury, and section 42 provides that
” Before committing a person to prison or imposing a
Petrides Kingdon,” fine on any person under the last preceding section, the
and” Ccnirt shall ask such person if he has anything to say why
Graham Paul
Cj.” sentence should not be passed on him, and shall record his
” answer in full.”
It is clear that this means that the person must be asked if he has anything to say why sentence should not be passed upon him as for a contempt of Court by committing perjury. In other words it must be clearly intimated to him that he is charged with perjury, the assignin.ent or assignments of perjury must be specified and he must be given an opportunity of showing that the charge cannot be supported, as well as urging anything he may wish to do by way of mitigation if he admits the charge.
. The provisions of this section 42 were not observed in the present proceedings; until the moment that sentence was passed there was no suggestion that either of the appellants had committed perjury, and neither of them was giver, any opportunity to say anything in answer to a charge of perjury. For this reason the orders of committal cannot be supported.
The appeals of both appellants are allowed the convictions and sentences are quashed and it is directed that in the case of, each of the appellants a judgment and verdict of acquittal be entered.
The appellants are discharged.
