QUEEN v TUKE (FSC 71/1961) [1961] NGSC 1 (1 June 1961)

HR|Have his cause heard (fair trial)



CITATION: [1961] SCNLR 357.


BRETT                                                    JUSTICE OF THE FEDERATION (Presided)
TAYLOR                                                 JUSTICE OF THE FEDERATION
BAIRAMIAN                                          JUSTICE OF THE FEDERATION

THE QUEEN                                            APPELLANT


ALAYAU ASHAYU TUKE                        RESPONDENT


BAIRAMIAN, F.J. (delivering the judgment of the Court): The appellant was tried in the High Court at Jos, of the Northern Region, on the 4th, 5th and 30th of January, 1961, and convicted on the 6th of February, on a count of murder, contrary to section 319 of the Criminal Code, contained in an in-formation filed on the 18th of November, 1960, the particulars being that:--

Alayau Ashayu Tuke on the 14th day of February, 1960, in the Plateau

Province murdered Amajau Tuke.

The first ground of appeal is that:--

The information filed against the appellant was a nullity in that the appellant was charged under the Criminal Code Ordinance.

The argument is that the Criminal Code Ordinance was, to the extent stated in section 7 of the Penal Code Law, 1959, of the Northern Region, repealed and replaced in the Northern Region by the new Penal Code Law of the Region, with effect from the 30th September, 1960; that a count under the Criminal Code could no longer be laid after that date; and that the appellant should have been charged under the appropriate provision of the new Penal Code.

The new Penal Code law was not in force on the 14th of February, 1960, when the murder was committed. Moreover, section 3 of that Law makes it plain that the Penal Code in the Schedule to that Law relates to offences committed after that law comes into operation; section 3 provides that:--

(1) Every person shall be liable to punishment under the Penal Code for every act or omission contrary to the provisions thereof of which he shall be guilty within the Northern region.

(2) After the commencement of this Law no person shall be liable to punishment under any native law or custom.

We think that it was right to prosecute the appellant for an offence under the Criminal Code, having regard to section 14 of the Interpretation Ordinance, which (so far as relevant) provides that:--

The repeal of any Ordinance or Law or any part thereof shall not, unless the contrary intention appears-

(c) affect any right, privilege, obligation or liability accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any Ordinance or Law so repealed; or

(e) affect any  investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Ordinance or Law had not been passed: Provided that.

(The proviso is irrelevant in this case.)

As the offence was committed at a time when the Criminal Code was in force, and was an offence against section 319 of that Code, it was the proper course to prosecute for an offence under that section.

The other ground of appeal is that:--

The trial of the appellant was a nullity in that the learned trial Judge did not comply with the provisions of section 242 of the Northern Region Criminal Procedure Code.That Procedure Code came into force on the 30th September, 1960; but section 3 of the Law to which that Procedure Code is appended as a Schedule provides that:--

All proceedings instituted, commenced or taken in accordance with the provisions of the Criminal Procedure Ordinance or any other written Law in respect of any criminal cause or matter pending at the date of the coming into force of this Law shall be valid and effectual and shall be continued in accordance with the provisions of the Criminal Procedure Ordinance or such other written law as the case may be.

The argument for the appellant is that, until the day on which the information was filed in the High Court, namely the 18th of November, 1960, there was no cause or matter pending in that Court. That argument leads to a curious result. In the present case, the Magistrate had, before the 30th of September, 1960, committed the appellant for trial by the High Court; after the committal, the case ceased to be pending in the Magistrate’s Court; so, on that argument, between the date of committal and the date of the filing of the information, the case was not pending before any Court.

We note, however, that the aforesaid section 3 does not speak of a cause or matter pending in any particular court, but merely of a cause or matter pending, which means one that has been begun but has not been terminated. A case triable in the High Court is begun as a preliminary investigation be-fore a Magistrate, and, if he commits the accused person for trial, the case is terminated in the High Court. If any such case had been begun before a Magistrate before the 30th September, 1960, it was a pending cause or matter at that date, and should be continued to the termination of the case in accordance with the Criminal Procedure Ordinance under which it had been begun. In our view the intention of section 3 was to avoid mixing the old procedure with the new. The new Procedure Code did not apply to the present case, so no question arises of whether or not a provision of the new Code was observed.

No complaint was made on the merits of the case. The appellant, who had a grievance against the deceased connected with the appellant’s wife, deliberately stabbed him mortally. He was rightly convicted, and his appeal is dismissed.

Appeal Dismissed.

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