Rex V. Samuel Adiukwu & Ors (1939)

LawGlobal Hub Judgment Report – West African Court of Appeal

Consolidated Cases—simultaneous trial where accused persons separately committed for trial—Defendants indicted separately cannot be tried jointly—Mistrial and venire de novo—Re-trial under section 11 (5) of the West African Court of Appeal Ordinance.

Held : Proceedings in trial Court were a nullity through want of jurisdiction and fresh trial ordered before the High Court.

Cases cited :-

Rex v. Crane (15 C.A.R. 23).

Rex v. Charles Dennis and Henry Parker (16 C.A.R. 39). Rex v. Macdownell (20 C.A.R. 163).

There is no need to set out the facts.

Appellant not present

D. Hagley for Respondent.

The following joint judgment was delivered :-

BUTLER LLOYD, AG. C.J., CAREY AND BROOKE, JJ.

The case against the first three accused was originally a separate one, No. A /128. C /1939, in which they were committed for trial on charges of conspiracy to bring false accusation contra section 1f.,5 of the Criminal Code, preparation for coining section 148 (3) (a) and possession of several counterfeit coins section 152 (1) (c). The fourth accused was, as the Judge states at page 17 of the record, arraigned separately from the others (Case No. A /124. C /1939) on four different counts of counterfeiting silver coins section 147, preparation for coining sections 148 (3) (a) and (d) and possession of several counterfeit coins section 152 (1) (c). The cases were consolidated and all accused were tried together.

The first two accused were convicted of conspiracy and preparation for coining, the third accused was acquitted on all three counts and the fourth accused was found guilty on the first two and the last counts, The latter alone has appealed to this Court.

A preliminary point was taken that there had been a misjoinder. The learned Crown Counsel did not seek to support the irregularity of a simultaneous trial where the persons had been separately committed for trial and referred to R. v. Crane 1921, 15 C.A.R. 23 in which it had been definitely established that defendants indicted separately cannot in law be tried jointly ; such a proceeding was held to be a mistrial and a venire de novo was awarded. The fact that there were separate indictments was in that case only discovered after the appellant had given notice of appeal.

Avory J. remarked ” Was there a trial at all in this case, which can be recognised ? If they were not properly giiien in charge the tribunal was not competent to try them.”

The Court treated the verdict and sentence as a nullity and they were expunged from the record. On appeal to the House of Lords it was held (Viscount Finlay dissenting), that when the Criminal Court of Appeal annuls proceedings on indictment on the ground that they are void it has the power to order a trial on the indictment in question.

R. v. Charles Dennis and Henry Walter Parker 18 C.A.R. 39 decided that defendants not jointly indicted cannot be tried together by consent : the headnote reads ” the Court will take the point that there has been no jurisdiction if it is not taken by the parties.” It is bound to take notice of a manifest want of jurisdiction.

In a futther case, that of R. v. MacDonnell 20 C.A.R. 163 where there were no merits at all on the facts and no one appeared to have been aware of the existence of separate indictments the simuita:neous trial of indictments was held to be a nullity. The conviction was quashed and no new trial was in that case ordered, as the appellant had been detained for six weeks instead of the nine he would have had to serve.

This Court accordingly finds that the proceedings in the trial Court under consideration were a nullity through want of jurisdiction and under section 11 (5) of Ordinance No. 47 of 1933 orders new trials before the High Court. Although Samuel and Onyema Adiuku have not appealed, they get the benefit of our decision so far as the trial here in question is concerned and of this they will be informed.