The Queen V. Azu A. Owoh & Ors (1962)

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BRETT, F.J

The appellants are three out of eight persons who were tried jointly in the High Court of Eastern Nigeria on an information in the name of the Director of Public Prosecutions of the Federation, signed on his behalf by a crown counsel in the public service of the Federation. The other five accused persons were acquitted.

While the purpose of the activities alleged against the appellants was a fraudulent evasion of import duties of customs, the actual offences of which one or more of them was found guilty were conspiracy to steal, contrary to section 516 of the Criminal Code; conspiracy to defraud, contrary to section 422; cheating, contrary to section 421; stealing, contrary to section 390(4)(f); forgery, contrary to section 467(2)(j); and uttering, contrary to section 468. The sections creating these offences are not laws with respect to any matter in the Exclusive Legislative List in the Schedule to the Constitution of the Federation, and it follows from section 3 of the Nigeria (Constitution) Order in Council, 1960, when read in conjunction with section 57(3)(b)(i) of the Nigeria (Constitution) Order in Council, 1954, as substituted by the Nigeria (Constitution) (Amendment No.2) Order in Council, 1957, that they have effect in Eastern Nigeria as if they had been enacted as Regional Laws in pursuance of the 1960 Order. The consequence is that in the courts of Eastern Nigeria the director of Public Prosecutions of the Region may exercise the powers conferred by section 47 of the Constitution of Eastern Nigeria in respect of offences created by those sections, but that the Director of Public Prosecutions of the Federation may not exercise the powers conferred by section 97 of the Constitution of the Federation. So far as the powers conferred by statute are concerned, sections 487 and 488 of the Criminal Procedure Act when construed with section 1 (2) of that Act and with section 38 of the Interpretation Act, produce the same result.

The Director of Public Prosecutions of the Federation had therefore no standing under sections 337 to 343 of the Criminal Procedure Act to sign an information in the present case, since it is common ground that no powers have been delegated to him under section 47(4) of the Constitution of Eastern Nigeria, and that he has not been designated as a person authorised to sign an information under section 341 of the Criminal Procedure Act. So much was conceded by Mr. Miller, Senior Crown Counsel, who appeared for the respondent in this Court. It follows that there was no information properly before the court of trial, and that the only course open to us is to allow the appeals and set aside the convictions, on the ground that the trial was a nullity.

We do not consider that the power of ordering a retrial under section 26(2) of the Federal Supreme Court Act, 1960, applies in the circumstances of this case, where there is no information on which the appellants can be tried, and we make no order in the matter. Chief Williams, who appeared for the first appellant, suggested that there might be legal difficulties in the way of instituting fresh proceedings, without saying what they were, and we express no opinion on that point. No doubt the appropriate authorities will consider what their legal powers are, as well as what use it would be proper to make of them. We would, however, express the view that trial of those who were acquitted was a nullity equally with the trial of those who were convicted, it might be considered oppressive to take advantage of the prosecution’s own mistake by putting those who were acquitted on their trial a second time.

Other Citation: (1962) LCN/1000(SC)