Onu Okafor v. The State (1976)
LawGlobal-Hub Lead Judgment Report
The Appellant was on the 26th day of May, 1975, convicted for Murder and sentenced to death by the High Court of Anambra State (then East Central State) sitting at Abakaliki. This appeal is from the said judgement.
The Information in this case was preferred by leave of the High Court (Araka J.) pursuant to the provisions of Section 340(2)(a) of the Criminal Procedure Law Cap 31 in volume 2 of the Laws of Eastern Region 1963 edition applicable in the East Central State (now Anambra & Imo States). At the hearing of the appeal the learned Principal State Counsel appearing for the Respondent submitted that the trial in the lower court was a nullity, and asked that the proceedings be quashed and a new trial ordered. The attention of the court was drawn to section 18(II) of the Criminal Procedure Edict 1974 (hereinafter referred to as ”the 1974 Edict”) already in force on the 9th day of September, 1974 when the High Court granted the Prosecution leave to prefer the Information in this case. That section (18(II) aforesaid replaces sub-section 2 of section 340 of Cap 31 aforesaid and it reads:-
“(2) Subject as hereinafter provided no information charging any person with an indictable offence shall be proferred unless either –
(a) the information is preferred after the preparation of the proof of evidence in the charge, or
(b) The information is preferred pursuant to an order made, under part XXXI to prosecute the person charged for perjury, or
(c) The information is preferred in cases other than those mentioned in paragraphs (a) and (b) above where because of the special circumstances of such cases the Attorney-General considers that an information should be filed without recourse to the procedure referred to in paragraph (a) above: Provided that where the information is preferred after the proofs of evidence………
Sub-section (ii) of Section 18 of the 1974 Edict replaces paragraph (b) of the proviso to sub-section (3) of section 340 of Cap 31 aforesaid and it reads:-
“Where a person is convicted on an information, or on any count of an information, preferred under paragraph (a) or (b) of sub-section (2) of this section, that information or count shall not be quashed under this section in any proceedings on appeal unless application was made at the trial that it should be so quashed”.
There is no doubt that the information in this case was not proffered in accordance with the provisions of the 1974 Edict and certainly not in accordance with the provisions of sub-section 2(a) of Section 340 of Cap 31 as amended by section 18(2) of the 1974 Edict. No application was made in the lower court for the information in the case in hand to be quashed. In England, the proper time for making such an application is before plea is taken [see R v Chapple and Bolingbroke 17 cox 455], although it was held in R v Thompson (1914) 2 KB 99 that while this is just and convenient, it is not essential that the application be made before plea is taken; and so where it is clear that an indictment has been preferred and signed without jurisdiction the Court will quash it after plea is taken and even after the Prosecution have closed their case ” see R v Heane 4 B.& S. 947 and R v James 12 cox 127.
Prior to the amendment of the Proviso to sub-section 3 of Section 340 of Cap 31 the position was that “where a person who has been committed for trial is convicted on any information or on any count of an information, that information or count shall not be quashed under this section (i.e. 340 (3) of Cap 31) in any proceedings on appeal, unless application was made at the trial that it should be so quashed”. This proviso therefore provides a kind of insurance in favour of the Prosecution where an Accused was convicted by default on an information proferred without authority, the default consisting in the omission by the defence to apply in the lower court for the information to be quashed. [see also R v NISBET (1972) 1 QB 37 at 46]. The amendment to the said proviso (introduced by Section 18 (ii) of the 1974 Edict) has, however, narrowed its scope and protection is now given to an information preferred “without Jurisdiction” to which objection has not been taken by the defence, in the lower court, only if it had been preferred in accordance with paragraph (a) or (b) of section 340 (2) as amended by the 1974 Edict (Section 18(2) of the 1974 Edict refers). The question which naturally arises and which calls for consideration in this appeal is what is the position of an information preferred not in accordance with the provisions of Section 340(2) Cap 31 aforesaid as amended by the 1974 Edict and in respect of which the defence, in the lower court, neither raised objection nor asked to be quashed In our view, sub-section 3 of Section 340 provides the answer which is that the information must be quashed, the failure by the defence to have taken objection on the information, in the lower court notwithstanding.
We will now consider the application for a new trial (of re-trial) made to us by the learned Principal State Counsel. Unlike the Court of Appeal (Criminal Division) in England this Court has a general power to grant a new trial in a criminal case and it has in earlier cases stated that it will grant a retrial only if satisfied:
“(a) that there has been an error in law (including the observance of the law laxity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this court is unable to say that there has been no miscarriage of justice and to invoke the proviso to section 11(1) of the Ordinance [now section 26(1) of the Supreme Court Act 1960];
(b that, leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant.
(c)That there are no such special circumstances as would render it oppressive to put the Appellant on trial a second time;
(d) That the offence or offences of which the Appellant was convicted, or the consequences to the Appellant or any other person of the conviction or acquittal of the Appellant are not merely trivial; and
(e) That to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it- [see Abodundu & Others v The Queen (1959) 4 F.S.C. 70 at 73-74.] (brackets and underlining supplied).
However, this court will not grant a new trial unless, at least, all the above five facts co-exist, and it has said so on a number of occasions [see also AKWA v The State. (1969) 1 ALL. N.L.R. 133]; and in any event a retrial will not be ordered merely because, if ordered, the Prosecution would have the opportunity of remedying a defect in their case in order to secure a conviction of the Appellant.
In the case in hand the information was preferred without jurisdiction and the trial was a nullity. On that ground alone the application for a new trial will be refused. Retrial implies that there was a former trial, and so this court will not grant a new trial (or retrial) upon a trial which was null and void (see also Moses Okoro v The Police (1953)14 W.A.C.A.370).
Accordingly, the conviction of the Appellant by the High Court Abakaliki (Amadi-Obi J.) dated 26th May 1975 will be and is hereby quashed and the sentence is set aside. It is left to the Prosecution to take what (if any) steps they may think fit and proper.
Other Citation: (1976) LCN/2314(SC)