Samuel Omu V. Commissioner Of Police (1950)

LawGlobal Hub Judgment Report – West African Court of Appeal

Power of Supreme Court to convict an appellant under a section other than
that on which he had originally been charged—Section 43 (a) (ii) of the
Magistrate’s Courts Appeal Ordinance (Cap. 123) considered—Exercise of
such power.

Facts

The appellant was convicted by the Magistrate’s Court of an offence contra section 404 (1) of the Criminal Code. The appellant appealed to the Supreme Court which substituted for the original conviction a conviction contrary to section 515 of the said Code.

The arguments in this appeal turned firstly, on the powers of the Supreme Court to substitute a conviction for an offence other than that originally charged, and secondly, if such power existed, whether the Supreme Court had pioperly exercised its powers.

Held

Section 43 (a) (11) of the Magistrate’s Courts (Appeals) Ordinance gives the Judge an unqualified power to substitute another section for that under which the appellant has been convicted.

Held further, that, although the powers are unfettered, their application should be limited to those cases where the appellant has not been surprised or embarrassed by the change. This Court was not satisfied, in the circumstances of the case, that the substitution could be made without danger of causing an injustice. The appeal was, therefore, allowed.

Appeal allowed.