The Queen V Alayau Ashayu Tuke (1961)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, F.J

The appellant was tried in the High Court at Jos, of the Northern Region, on the 4th, 5th and 30th of January, 1961, and convicted on the 6th of February, on a count of murder, contrary to section 319 of the Criminal Code, contained in an information filed on the 18th of November, 1960, the particulars being that:–

Alayau Ashayu Tuke on the 14th day of February, 1960, in the Plateau

Province murdered Amajau Tuke.

The first ground of appeal is that:–

The information filed against the appellant was a nullity in that the appellant was charged under the Criminal Code Ordinance.

The argument is that the Criminal Code Ordinance was, to the extent stated in section 7 of the Penal Code Law, 1959, of the Northern Region, repealed and replaced in the Northern Region by the new Penal Code Law of the Re-gion, with effect from the 30th September, 1960; that a count under the Criminal Code could no longer be laid after that date; and that the appellant should have been charged under the appropriate provision of the new Penal Code.

The new Penal Code law was not in force on the 14th of February, 1960, when the murder was committed. Moreover, section 3 of that Law makes it plain that the Penal Code in the Schedule to that Law relates to offences committed after that law comes into operation; section 3 provides that:-

(1) Every person shall be liable to punishment under the Penal Code for every act or omission contrary to the provisions thereof of which he shall be guilty within the Northern region.

(2) After the commencement of this Law no person shall be liable to punishment under any native law or custom.

We think that it was right to prosecute the appellant for an offence under the Criminal Code, having regard to section 14 of the Interpretation Ordinance, which (so far as relevant) provides that:–

The repeal of any Ordinance or Law or any part thereof shall not, unless the contrary intention appears-

(c) affect any right, privilege, obligation or liability accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture, or punishment incurred in re-spect of any offence committed against any Ordinance or Law so repealed; or