Rex V. Emeaguru Inyioha (1945)
LawGlobal Hub Judgment Report – West African Court of Appeal
Murder—Appellant charged with and tried for two murders at the same time—Rule 3, Schedule 1, Cap. 20—Repealed by Section 339 of Criminal Procedure Ordinance No. 42 of 1945.
Not more than one charge punishable with death shall be charged in the same information.
Appeal allowed. Conviction and sentence quashed and proceedings declared a nullity.
R. A. Doherty for Crown.
Appellant not present nor represented.
The following judgment was delivered by BAKER, Ao.C.J., NIGERIA :—
This is an appeal against a conviction on a charge of murder. The particulars of the offence read as follows :—
“Erueaguru Inyioha on the 2nd day of January, 1945, at ObuloEziama Nneato, in the Province of Owerri, murdered two nameless newly-born twin babies”.
When it was pointed out to Crown counsel that they were identical with the particulars given in R. v. Ugo Chima (before W.A.C.A. on the 11th of July, 1944, unreported) he said he was unable to support the conviction. We agreed with him that the Judge who tried the case was bound by that decision, from which we see no reason to dissent. The pertinent paragraph in the judgment is as follows :—
“But apart from this we are of opinion that the prociedings were irregular ab initio and that the conviction must be quashed.
It is apparent that the Appellant was charged with and tried for two murders at the same time. In the case of Bex v. Bekum (7 W.A.C.A., p. 10) it was pointed out that the Nigerian law in such a case differs from the English. Under English law whilst the joinder of two murders in one indictment is undesirable, it is not fatal if in fact the accused is not prejudiced thereby (B. v. Davies 26 Cr. App. Rep., p. 95). It was evidently on the basis of this rule of English, law that Bex v. Inyang (5 W.A.C.A., p. 62) was decided, the attention of the Court not having been directed to .the difference under Nigerian law. Under Nigerian law there is an express prohibition, having the force of an Ordinance, against the joinder of any other charge with a charge of murder. In our opinion it makes no
difference whether the other charge is, as here, joined in the same count, or whether, as in Bex v. Bekutn (supra), it is joined in a separate count. In either case the trial is vitiated.”
Rule 3 in the First Schedule to Cap. 20 reads :—
“provided that no other charge shall be joined with a charge for murder.”
Section 339 of the new Criminal Procedure Ordinance No. 42 of 1945, which as from the 1st-of June (and this trial took place on the 16th of that month) repealed Cap. 20, substituted words even stronger than these :—” Save that no other charge shall be joined with a charge punishable with death and not more than one charge punishable with death shall be charged in the same information”. This is now well established law and it is to be regretted that failure to observe it has resulted in this appeal (which has no other merits whatever) being allowed. For this reason only the conviction and sentence were quashed and the proceedings declared a nullity.