KINGDON, C.J., NIGERIA, PETRIDES, C.J., COLD COAST, GRAHAM PAUL, C.J., SIERRA LEONE. The appellant was charged before Brace Assistant. Judge in the Aba Judicial Division on a number of counts. He pleaded not guilty to all and was acquitted on all except Count 1 which was for possessing a firearm without proper authority contrary to sections 8 (1) and 27 of the Arms Ordinance (Chapter 132).
After the case for the Prosecution had been closed, and the , case for the defence had been partly heard and there had been legal argument resulting in the acquittals already mentioned, the Court recorded “Count 1 will proceed.” Thereupon counsel for the accused said “ I plead guilty to court 1 now.” Then followed the allocutus which is recorded as “Nothing” and then the Court passed sentence of a fine of £15 or three months hard labour. The appellant paid the fine. The appellant now appeals to this Court in which he is represented by different counsel, on the ground that he was not aware that a plea of guilty was being recorded against him and it was not his intention to plead guilty. In view of the record we feel compelled, with some reluctance, to accept the position that the appellant never did in fact plead guilty. It is well established law that when it is wrongly understood that an appellant has pleaded guilty the subsequent proceedings are a nullity (R. v. Baker 7 Cr. App. Rep. 217; R. v. Ingleson 11 Cr. App. Rep. 21; R. v. Hussey 18 Cr. App. Rep. 121). This being so we propose to exercise our powers under section 11 (5) of the West African Court of Appeal Ordinance, 1933 (No. 47 of 1933) and order the appellant to be retried. As the Assistant Judge who tried the case is not now in Nigeria, it is not possible that he should continue the trial from the point at which it became a nullity.
The appeal is allowed the conviction and sentence are quashed and it is ordered that the fine paid be refunded to the appellant and it is further ordered that the appellant be tried by a Court of competent jurisdiction and that he do appear before the High Court of the Aba Judicial Division upon a date and at a place to be notified to him and do plead to and answer the charge UpOl1 Count 1. and that in the meantime the appellant be released upon his entering into recognizance in the sum of £15 to make due compliance with this Order.