Waldo Trench Fox V. Commissioner Of Police (1947)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Larceny—Amendment of charge—Nigeria Criminal ProcedureOrdinance, sections 162, 163 and 164—Taking of plea on amended charge—Notification to accused of right to elect to be tried in Supreme Court—CriminalProcedure Ordinance, section 354 (3)—Error in procedure rendering trial anullity—Magistrate ordering hearing de novo.

Facts

At a trial in a Magistrate’s Court, a charge was amended by leave of the court, but after the case for the prosecution was closed, it was found that sections 164 and 354 (3) of the Criminal Procedure Ordinance had not been complied with as respects the amended charge.

The Magistrate therefore declared the whole proceedings to be a nullity and began the hearing de novo, and, at its conclusion, convicted the appellant.
The appellant appealed to the Supreme Court which upheld the conviction.

On appeal to the West African Court of Appeal, the appellant contended, inter alia, that the trial court was not competent to declare its own proceedings a nullity.

Held

Following R. v. Marsham (1) that the failure to comply with section 164 of the Criminal Procedure Ordinance rendered the whole proceedings null and void, that it would have been improper for the Magistrate to have delivered a judgment in a case which he knew was improperly before him, and that it was competent for him to begin the hearing de novo.

Appeal dismissed.