COMMISSIONER OF POLICE
V.
MOSES TETTEH AYIKU

JELR 80528 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
 · 
Other Citations
1939 5 WACA 89
CORAM
COR. PETRIDES AND WEBB, C.JJ AND BUTLER LLOYD, AG. C.J.
Core Terms Beta
trial
sentence
alternatives
appeal
criminal procedure code
fresh trial
learned judge of the divisional court
restrictive significance
section
subsection
alternative courses
appellate court
appropriate word
butler lloyd
case
case of want of jurisdiction
c.j
c.j.
c.j. nigeria
correct reading of subsection
counsel
court
crown
facts
gold coast
indian reports
j. ainley
joint judgment
judge-finding
new trial
opinion
order
order of the divisional court
page
permits
petrides
powers
relation
reverse
s. adoo
set aside
sierra leone
similar subsection
sohoni p
trial court
view
webb
whole question
word
word reverse

*Page 89

Section 319 (1) (a) of the Criminal Procedure Code-Re-trial ordered by judge-Finding and sentence should be reversed before re-trial ordered- Word reverse has no restrictive significance and can include “set aside” or” annul”

Held : Appeal dismissed and order for fresh trial re-affirmed. There is no need to set out the facts.

A .J. Ainley for Crown. S. Adoo for Appellant.

The following joint judgment was delivered :- PETRIDES, C.J, GOLD COAST, WEBB, C.J., SIERRA LEONE, AND BUTLER LLOYD, AG. C.J. NIGERIA. The whole question raised by this Court is whether the learned Judge of the Divisional Court in ordering a fresh trial was acting within the powers conferred on him by section 319 (1) (a) (i) of the Criminal Procedure Code. Counsel for the Appellant argues that this subsection in itself permits of three alternative courses :- 1. To reverse the finding and sentence and to acquit or discharge the accused. 2. To order the accused to be retried. 3. To commit him for trial and this would appear to have been the view taken by the learned Judge of the Divisional Court, but in our opinion it is not the correct reading of subsection (a) (i) which is itself one of four alternatives. In a case to which subsection (a) (i) is appropriate the finding and sentence must first be reversed and then three alternatives are open to the Appellate Court :- 1. To acquit or discharge the accused. 2. To order him to be retried. 3. To commit him for trial. We do not think that the word “reverse” has any restrictive significance. It may be taken as including” set aside “or” annul” as appears from the Indian Reports in relation to an exactly similar subsection-of Sohoni p. 889 et seq. In the case of want of jurisdiction in the Trial Court “annul” would appear to be the most appropriate word to use. We therefore affirm the order of the Divisional Court for a new trial. The appeal is dismissed.