Rex V. Nafunge Yekun (1938)
LawGlobal Hub Judgment Report – West African Court of Appeal
Receiving stolen property contra. section 427 of Criminal Code.Transfer of case from Native Court—Order by District Officer Appealviz. ” case to he retried by me” not an order of transfer to,, Magistrate’s Court—Accused’s consent to trial by Magistrate conviction not having been obtained, proceedings void—High Court by High cannot adopt proceedings in Magistrate’s Court although Court. same person is Judge and Magistrate–Sul:e Akesse v.Fatumo overruled by Section 8 of Ordinance No. 16 of 1936.
Held: Whole proceedings in Magistrate’s Court and. High Court void and appeal allowed.
The facts are sufficiently set out in the judgment.
C. N. S. Pollard for Crown.
Appellant not present.
The following joint judgment was delivered :—
KINGDON, C.J., NIGERIA, BUTLER, LLOYD AND CAREY, JJ.
The appellant was convicted of receiving stolen property, to wit, three goats contrary to section 427 of the Criminal Code, by the Acting Assistant Judge of the Calabar-Aba Area of the High Court in the Cameroons Province on the 25th January, 1937.
He applied for and obtained an extension of time within which to give Notice of Appeal.
The Notice of Appeal dated the 12th July, 1937, sets out the questions of law upon which the appellant appeals against his conviction, as follows:—
- That I, Nafonge Yekum, having been convicted of a similar offence based upon the same facts in Ndop Native Court on the 17th day of August, 1936, and the said conviction never having been annulled or set aside, and no valid order of transfer under section 25 (1) (c) of the Native Courts Ordinance ever having been exercised, (or if it was exercised it was of no.effect), I was improperly charged before the Magistrate with Full Powers at Bamenda with the aforementioned offence.
- That the Magistrate at the trial failed to inform me of the provisions of section 33 of the Protectorate Courts- Ordinance as amended by section 7 of Ordinance No. 15 of 1936: and my trial was therefore void ab initio.
- That upon transfer of the case from the Magistrate’s Court to the High Court, the learned Judge of the High Court improperly adopted the proceedings of the Magistrate’s Court and did not begin my trial de novo.
- That there was a substantial miscarriage of justice.
It appears that the appellant was convicted on the 20th July, 1936, by the Native Court of Ndop in the Cameroons Province, of stealing three goats, one chair and cushion and was sentenced to six months imprisonment and to pay £1 10s. Od.
On the complaint of the appellant to the District Officer the latter minuted to the President of the Native Court ”
The case is to be re-heard please If
On the 17th August, the case was re-heard and the previous sentence was confirmed.
On the 1st September, 1936, an endorsement on the Native Court record was made as follows :—” Case to be retried by me. M. Jeffreys 1/9/36.”
On the 25th September, 1936, Dr. M. D. W. Jeffreys as Magistrate with Full Powers commenced in the Magistrate’s Court the trial of the appellant on three charges viz :—Burglary, Stealing, and Receiving contrary to sections 411, 390 (3) and 427 of the Criminal Code respectively in respect of the same transaction for which the appellant had been convicted in the Native Court.
On the 22nd January, 1937, while the trial was still pending, at the request of the Magistrate, the Chief Judge ordered the transfer of the case to the High Court for trial, and in that Court the conviction as herein first stated resulted and the appellant was sentenced to four years imprisonment with hard labour, two previous convictions having been admitted by him.
It should here be noted that the record of the proceedings before the Magistrate, who was in fact the same person as the Acting Assistant Judge, was adopted as far as it went by the latter after the transfer of the case and the remaining evidence was recorded as being given in the High Court.
The learned Crown Counsel did not oppose the granting of extension of time and, on this Court proceeding to hear the appeal, did not attempt to uphold the conviction.
In support of the appeal the appellant presented his case and argument in writing. Having set forth the relevant facts regarding the several proceedings, the appellant submitted that the conviction and sentence of the High Court should be quashed for the following reasons :-
(a) The counts in the charge presented before the learned Magistrate and adopted by the High Court were based on the same facts, presented in a more aggravated form, as the charges heard and determined by the Ndop Native Court.
- Section 25 of the Native Courts Ordinance, No. 44 of 1933 (as amended by Ordinance No. 16 of 1936) does not give the Senior District Officer power to nullify the proceedings of the Native Court under sub-section (a); and if the sub-section does in fact confer such power that power was never exercised by the Senior District Officer in this case.; nor can it now be implied.
- If the submission in paragraph 20 (b) supra be held valid the only other way in which the case could have reached the Court of the learned Magistrate was by way of transfer under section 25 (c) of the said Native Courts Ordinance. (Be it noted that your humble appellant did not at any time attempt to exercise any right of appeal under section 27 nor did any right of appeal exist since the Native Court cases had been reviewed at his request.. Ordinance No. 16 of 1936 section 10 (e) refers).
- But if in fact there was or could be implied an order of transfer under section 25 (1) (c) aforesaid, such orders would have been of no effect, for after the Native Court had passed sentence of imprisonment nothing in the case remained to be done. The Honourable Court of Appeal is referred to Shule Akesse and Fatima—West African Court of Appeal of 22nd November, 1935.•
- It is further submitted that the Senior District Officer having failed to exercise any powers under the said section 25 in an unequivocal manner, and having failed to make any valid order the case was never properly before the learned Magistrate and could not and should not have been entertained by him.
- It is further submitted that the failure of the learned Magistrate to inform your humble appellant of the provisions of section 33 of the Protectorate Courts Ordinance (as amended by Ordinance No. 15 of 1936 section 7) and so to enable your humble appellant to elect in what Court he would be tried make the trial void ab initio.
The Honourable Court of Appeal is referred to a judgment of His Honour Mr. Justice Baker in 1937 in quashing a conviction by the Magistrate Calabar for this reason ; of which judgment the appellant regrets he is unable to furnish particulars.
- It is submitted that where any conviction by the learned Magistrate would have been bad in law the objections to such conviction were not, and could not be cured, solely by a transfer to the High Court
• Reported in 2 W.A.C.A. p. 355.
when the High Court adopted the proceedings of the
Magistrate’s Court; and that the High Court if it
could and did in fact adopt any part of those
Rexproceedings must adopt the whole of them.
v.(h) It is finally submitted that upon transfer to the High
NafungeCourt the learned Judge was bounden to commence
the trial afresh from the beginning; that he was Kingdon,not empowered to adopt and could not adopt the
proceedings of the learned Magistrate.
Lloyd and(1..) The humble appellant being a pauper unable to obtain
Carey, J.J.assistance of a learned member of the Bar prays that
the Honourable Court of Appeal will take cognisance
of any further matter in the facts recited in the first
nineteen paragraphs hereof, and not specifically or
adequately raised in the twentieth paragraph, which
would vitiate the conviction of the High Court.
The first order by the Senior District Officer presumably was made under section 25 (1) (b) of the Native Courts Ordinance No. 44 of 1933. The re-trial before the Native Court was therefore in order and after its conclusion the Senior District Officer could have exercised in regard to it the powers conferred upon him by section 25 of the Native Courts Ordinance. He could under subsection (1) (c) have transferred it to a Magistrate’s Court, and when it came before a Magistrate’s Court under such an order of transfer that Court could under sub-section (9) have re-heard the case.
But the Senior District Officer did not make such an order, but instead he ordered ” case to be re-tried by me ” i.e.; by the Senior District Officer. We can find no power in the section to make such an order and in any case the order cannot have the effect of transferring the case to a Magiat. ate’s Court. It follows that the case was never properly &fore the Magistrate’s Court and all proceedings before that Court and all subsequent proceedings amount to a nullity for lack of jurisdiction. Apart from this there were two further irregularities each of which is sufficient in itself to compel the quashing of the conviction.
Before the trial of the appellant by the Magistrate was commenced, the appellant should have been informed of his right to be tried in the High Court as required by section 33 of the Protectorate Courts Ordinance (No. 45 of 1933 as amended by Ordinance No. 15 of 1936 section 7) and the appellant never having expressly consented to being tried by the Magistrate such trial by the Magistrate was null and void .ab initio.
Furthermore, the trial before the Magistrate, even had it not for the reason already given been void ab initio, was never concluded by the Magistrate and there was no proper trial by the High Court in that the evidence on which the High Court purported to act was not all given before it and taken by it.
It is obvious for these reasons that this Court was obliged to Rex allow the appeal and quash the conviction and sentence recorded byv.
the High Court and further under the express terms of section Nicholas 10 (2) of the West African Court of Appeal Ordinance to direct —
that a judgment and verdict of acquittal be entered.Kingdon,
Before leaving this case there is one other point which we C.J.,Butler might usefully make clear.Lloyd and
When the case Stile Akesse versus Fatwma, to which reference Carey, JJ. is made supra, was decided by this Court, section 25 (1) (c) of
the Native Courts Ordinance read as follows :—
” (c) Order the transfer of anx cause or matter either before trial or at any stage of the proceedings, whether before or after sentence is passed or judgment is given, to another Native Court or to the Magistrate’s Court or to the High Court.”
The Court held that the sub-section was a contradiction in terms in that the power to transfer a cause ” at any stage of the proceedings ” applied only so long as anything remained to be done to complete the judgment, that where the proceedings are complete the power is gone and that the transfer of a cause after judgment was given was of no effect, the proceedings having terminated. Ordinance No. 16 of 1936, section 8, by deleting the comma after ” proceedings ” and the words ” whether before ” disposed of the contradiction and expressly gave power to transfer a cause or matter after sentence is passed or judgment is given, and the sub-section (9) then added to section 25 enables the Court concerned after transfer under sub-section (1) (c) to take any course with regard to the cause or matter which it considers justice requires subject only to the limitation that such Court is not empowered to try a person for an offence of which he has been acquitted.
The defect disclosed by the judgment in Shule Akesse versus Fat uma was thereby cured on the 4th June, 1936, the date of the amending Ordinance and the argument of the appellant based on that case had no longer any force.