Mubashiru Aiyepola V. Commissioner Of Police (1952)
Appeals in Criminal Cases—Appeal to Supreme Court—Trial a nullity—Order of re-trial—Magistrates’ Courts (Appeals) Ordinance, section 43 (a) (i).
LawGlobal Hub Judgment Report – West Africa Court of Appeal
The appellant was charged before the Magistrate with an offence which could be tried with the appellant’s consent but not otherwise. The Magistrate omitted to ask for that consent and the trial was therefore a nullity under the second proviso to section 20 (iv) of the Magistrates’ Courts Ordinance.
On Appeal to the Supreme Court the Judge declared the trial to be a nullity and remitted the case for re-trial.
The appellant appealed further, arguing that a re-trial could be ordered only where there was a finding and sentence which might be reversed, but where the trial was null and void ab initio, as in this case, there was no finding or sentence to reverse, and the Judge could not do more than quash the conviction as being null in that it was part of the trial.
For the police it was argued that when a trial was declared null and void, a new trial must be ordered.
The question turned on section 43 (a) (i) of the Magistrates’ Courts (Appeals)
Ordinance, which reads:—
“ (a) On an appeal from a conviction—
(i) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a court of competent jurisdiction, or commit him for trial.”
It was sought in argument to avoid that provision on the ground that the Judge in declaring the trial to be a nullity was not exercising powers of that provision but declaring the law in the terms of the proviso to section 20 of the Magistrates’ Courts Ordinance.
(1) The Supreme Court in appeals from Magistrates’ Courts is confined to the powers conferred by the Magistrates’ Courts (Appeals) Ordinance.
(2) Where the trial was null and void for lack of jurisdiction, the Supreme Court should reverse the findings and sentence and may then order a re-trial under section 43 (a) (i) of the Magistrates’ Court (Appeals) Ordinance.