REX
V.
UMUKORO ILE

JELR 81187 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
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Other Citations
1942 8 WACA 225-228
CORAM
COR. KINGDON, PETRIDES AND GRAHAM PAUL, C.JJ.
Core Terms Beta
case
native court
power
section
high court
sentence
assistant judge
native courts ordinance
retrial
trial
order
senior district officer
verdict
district officer
umukoro ile
criminal code
new order
page
provisions of section
accused person
native court of competent jurisdiction
sentence of the native court
autrefois convict
beal’s cardinal rules
case umukoro ile
date of the order
different times
first part of question r
first punishment
following day
following question
form of a rule absolute
gold coast
inconsistent statutes
interpretation ordinance
last spring assizes
magistrates court
native court of lyede
order of transfer
present case
pursuance of the provisions of section
second punishment
second question
sentence of the first trial
set aside

(KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE. In this case Umukoro Ile was tried in the Native Court of lyede for attempting to steal, convicted and sentenced to six , month imprisonment. The following day the Senior District Officer on review transferred the case to the High Court for re-trial. He did so in pursuance of the provisions of section 25 (I) (b) of the Native Courts Ordinance, 1933 (No. 44 of 193:i) which at the date of the Order read- “Order any case to be retried either before the same Native Court “or before any other Native Court of competent jurisdiction or before “the High Court or before any Magistrates Court,” and not as it now reads (having been amended by Ordinance No. 22 of 1942) “Set aside the conviction and sentence or judgment or other Order “of a Native Court and order any case to be retried either before the “same Native Court or before any other Native Court of competent jurisdiction or before the High Court or before any Magistrate’s “Court.”

“Upon the case coming before Jibowu, Assistant Judge, he sent it back to the Senior District Officer with direction that he should set aside the verdict and sentence of the Native Court before making a new order for retrial. The Senior District Officer duly made the new order as directed. and thereupon the Assistant Judge tried Umukoro Ile upon the same fact upon a charge of burglary, convicted him and sentenced him to four years I.H.L. In these circumstances the following question have been put to this Court by the learned Assistant Judge:- 1.Whether I was right in holding that the power of ordering a retrial reserved to a Resident or District Officer under section 25 (1) (b) of the Native Courts Ordinance, implies and includes the power to set aside the verdict and sentence of the first trial before ordering a retrial in view of the provisions of section 24 of the Interpretation Ordinance of 1939.

2. Whether 1 was right in sending the case back to the Senior District Officer to set aside the verdict and sentence of Iyede Clan Court formally before I could retry the accused.

3. Whether I was right in holding that the High Court could retry an accused person whose conviction and sentence by a Native Court have been set aside by a District Officer exercising his powers under section 25 (1) (b) of the Native Courts Ordinance, 1933.

4. Whether I wall right in holding that the High Court may retry such an accused person on amended charges and not on the same charge tried by the Native Court especially when that charge is obviously wrong.

5. Whether I came to correct decisions in point of law on questions 1-4 above, and if not, what should be done in the premises.

This order of transfer was made under section 25 (1) (b) of the Native Courts Ordinance and it is an order which under that subsection the District Officer was certainly by the Legislature empowered to make. It is manifest that in giving this power to the District Officer to order a retrial the Legislature intended that such an order, if made, should be carried out.

The power conferred by section 25 (1) (b) to order a case to he re-tried appears to be analogous to the power possessed by the King’s Bench Division in England until 1907 to order a new trial.

Reference to page 294 of the 23rd Edition of Archbold (1905) shows clearly that the power to order a new trial carried with it the power to set aside the previous verdict and that at the new trial it was not open to the prisoner to plead autrefois convict or autrefois acquit, for the form of a rule absolute for a new trial is given as follows:-

“upon hearing counsel on both sides it is order that the verdict “of guilty obtained for the Crown at the last Spring Assizes holden in “and for the county of York, in this prosecution, be set aside and a “new trial had,” and one of the notes states : - “When the rules has been made absolute fresh notice of trial must Paul “be given, and the case proceeds us if no trial had taken place” We think that similar incidental powers and consequences appertain to the power of ordering a case to be retried under section 25 (1) (b) of the Native Courts Ordinance. We have however considered what effect (if any) the provisions of section 16 of the Criminal Code have upon the question in issue. The relative portion of that section reads:-

“A person cannot be twice punished either the provisions of “this Code or under the provisions of any other law for the same act or “omission.” In the present case it is clear that Umukoro Ile has been twice punished for the same act. The original conviction and sentence in the Native Court were the first punishment and remain a punishment unless it is declared, as is not the case here, that the proceedings in the Native Court were a nullity. The conviction and sentence in the High Court constitute the second punishment. Clearly then the provisions of section 16 of the Criminal Code are inconsistent with the effect (according to the view which we take) of an order for retrial under section 25 (1) (b) of the Native Courts Ordinance. but one of the principles governing the interpretation of statutes is that “if two inconsistent statutes be passed at different times, the last is to be obeyed, as it speaks the last “intention of the makers. “(Beal’s Cardinal Rules of Legal Interpretation, 3rd Edition page 480), Here the enactment of the Native Courts Ordinance is subsequent in date to the enactment of the Criminal Code. We hold, therefore, that its provisions must prevail over those of the Criminal Code, so far as the two are inconsistent with each other, and that therefore the question in issue is not affected by section 16 of the Criminal Code. We accordingly answer the first question submitted to us in the affirmative.

As to the second question we are of opinion that a simple order for retrial must be regarded as automatically carrying with it the setting aside of the first verdict and sentence, so that the retrial is not barred by section 24 of the Criminal Procedure Ordinance (Cap. 20) which reads: - A person who has been once tried for all “offence, and convicted or acquitted of such offence shall, while “such conviction or acquittal has not been reversed or set aside, " “not be liable to be tried again on the same facts for the same “offence” and it would have been competent to the learned Assistant Judge to proceed straight to the re-trial, without sending the matter back to the Senior District Officer for the verdict and sentence of the Native Court to be formally set aside, As a matter of form, however, it is preferable to follow the former English and include in the formal order words setting aside the previous verdict an sentence. Since the recent amendment such words should, of course, be included. Question 3 is answered in the affirmative. Question 4 is answered in the affirmative. The High Court has full ,jurisdiction to try the case de novu, a jurisdiction which includes the power to put the accused upon trial for any offence disclosed by the facts.

For the first part of Question r, see the answers already given; the second part is answered:- Since the conviction and sentence in the Court below are valid and finally dispose of the case, nothing further should be done, except to inform the accused and the Prison Authorities of the result of the reference to this Court.