Rex V. Zenvinula & Ors (1946)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Practice and Procedure—Irregularities in Proceedings at Trial—Trial declared a nullity—West African Court of Appeal Ordinance, section12 (5).

Where such irregularities occur in a trial as, in the opinion of the Court, render the trial a nullity, the Court will exercise its powers under section 12 (5) of the West African Court of Appeal Ordinance and order a fresh trial.

Appeals from the Supreme Court of Nigeria.

Adesigbin for first Appellant.

The following Joint Judgment was delivered:

This is an appeal by three persons convicted in the Supreme Court of Nigeria of the crime of murder.

The trial was holden at Jalingo before an acting Judge of the Supreme Court, . an officer who has not the advantage of professional legal qualifications.

The trial was commenced on the 1st July, 1946, when the first and second accused only were before the Court. These two accused were then charged, the substance of the charge explained to them, and they pleaded not guilty. Five witnesses gave evidence for the prosecution, and the case was then adjourned to the 3rd July, when the second accused gave evidence on oath. The first accused ‘then made a statement not on oath and the case for the defence of these two accused appears to have been closed. Up to this point, subject to certain observations which will appear later in this judgment, the trial appears to have been conducted in accordance with the normal procedure.

At this point in the record, however, there appears a note to the effect that judgment was reserved until such time as it might be possible to apprehend the third accused.

On 6th August the proceedings were resumed, the third accused having been apprehended and being present.

Thereupon, the evidence given by each of the five witnesses for the prosecution as well as that of the second accused and the statement of the first accused were read out to the third accused in the presence of the two other accused and of the witnesses, and it is recorded that the third accused stated that he had no question to ask any of them. The third accused then gave evidence on oath and was questioned by the Court, by whom further questions were also put to both the first and second accused. The acting Judge .then summed up the case and finding all three accused guilty sentenced them to death.It is quite clear that in so far as the third accused is concerned the whole of the proceedings in which he was required to take part were so completely novel and unknown to the form of procedure prescribed by the Laws of Nigeria that they do not amount to a trial at all and Counsel for the Crown was, quite properly, unable to support his conviction. The proceedings were a nullity, there has been no trial, and this Court therefore orders, by virtue of section 12 (5) of the West

African Court of Appeal Ordinance, that the accused be tried by a Court of competent jurisdiction.

As to the first and second accused it was submitted by Counsel for the Crown, in reply to submissions made by Counsel assigned by this Court for the defence of these accused, that although there were certain irregularities in their trial, these irregularities do not render the trial null nor did they result in such a miscarriage of justice that this Court should set aside the convictions.

This submission may be well founded up to the point at which judgment in their case was reserved, but on the resumption of the proceedings the course followed by the acting Judge was so entirely irregular in regard to these accused as well as in regard to the third accused that it is impossible to say that these further proceedings amounted to a continuation of the trial at all. After the case for the defence of the first and second accused had been closed and judgment in their case had been reserved, the proceedings were apparently re-opened against them, evidence taken from the third accused which purported to implicate the first two accused although the third accused had then no locus standi in the proceedings, either as a witness for the prosecution or for the defence or as a^, person properly joined in the trial, and the two accused persons were again questioned by the Court. All that could properly have been done at that stage was for the Judge to have pronounced judgment. All that was in fact done amounted to a complete nullity and the trial was never properly concluded. Ili our view, therefore, there was no completed trial of the first and second accused and in their cases also the charges must be sent back for trial before a Court of competent jurisdiction.

For the guidance of the Acting Judge we would refer to those matters in regard to which we have observed irregularity in the course of the proceedings although in view of our finding that there has been no completed trial these points are immaterial for the purpose of determining the appeal.

In the first place it does not appear from the record that the accused were separately charged nor that they separately pleaded to the charge. In every case the, plea of each accused person should be separately recorded.

In the second place nothing appears on the record to show that the first accused was given an opportunity of cross-examining the second accused who gave evidence on oath. Where one accused person has given evidence on oath implicating another accused person the latter should be given an opportunity of cross-examining the former and the fact should be stated in the record.

In the third place although the first accused elected to make a statement not on oath it appears from the record that he was questioned by the Court. In such a case the accused person should not be questioned, save to clear up some apparent ambiguity.

In the fourth place it does not appear that the third accused was ever charged or given an opportunity of pleading to the charge.

In the fifth place on the last day of the proceedings the first accused who had not given evidence on Oath was again questioned by the Court This also should not have been done.

In the sixth place in the course of his summing up the acting Judge appears to have considered that a statement made by the first accused was evidence against the second accused. No statement made by an accused person not on oath may be taken into consideration as implicating any other person.

Points of this kind are of importance, for where irregularities of this nature take place in the course of an otherwise valid trial and where as a result thereof miscarriage of justice may be occasioned the consequence would be, not that the case be sent back for a new trial as in the present instance, but the quashing of the conviction and the acquittal of the accused.

In this case the appeal of each accused is allowed, and this Court finding that the proceedings are a nullity the case against them is ordered to be tried before a Court of competent jurisdiction. In view of the fact that the acting Judge who conducted these proceedings has thus become aware of the facts thereby disclosed and come to a previous conclusion thereon, it is desirable that the trial should be heard by another Judge.

Appeals allowed and new trials ordered.