ORUCHE V. C.O.P, NORTHERN REGION

• Pages: 215-218

ORUCHE V. C.O.P, NORTHERN REGION

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ORUCHE V. C.O.P, NORTHERN REGION

ALPHONSUS ORUCHE

V

10 COMMISSIONER OF POLICE

NORTHERN REGION

FEDERAL SUPREME COURT

BRETT,

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C.J.F.

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TAYLOR,

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F.J.

BAIRAMIAN,

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F.J.

28th June, 1963.

APPELLANT

RESPONDENT

SUIT NO. FSC 73/1962

Criminal Law and Procedure - Order for retrial, case of

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Interpretation of Statutes - Repeal of Criminal Code in Northern Region -

Prosecution of offences committed before the repeal.

ISSUES:

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1. Whether an accused person can be charged and tried under an enactment

which comes into force after the time of his alleged offence.

2.

Whether a retrial before a new Magistrate would be fair, where the appeal court

which made the order has stated that there is a substantial case to answer.

3.

Whether it would be wrong to order a retrial in the case of a person who had

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served part of his sentence.

FACTS:

The appellant was convicted in the magistrate court of dishonestly converting,

in June, 1960, £900 which the Tiv N.A. entrusted to him to pay to the U.A.C. the

charge was brought under s.312 of the Penal Code which did not come into force

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until 30th September, 1960. This was overlooked when the appellant appeared

before the magistrate in February, 1961. On appeal to the High Court, both coun-

sels agreed that it was wrong to charge the appellant under the Penal Code but

his counsel argued that it was not a case for an order for retrial as the appellant

had been in custody since 21st August, 1961, serving the sentence imposed by

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the magistrate. The High Court ordered a retrial on the ground that there was a

substantial case against the appellant. On appeal to the Federal Supreme Court-

HELD:

1.

In spite of its repeal, the criminal code servered in Northern Nigeria after 30th

September, 1960 and the appellant can be prosecuted under its appropriate

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section in respect of an act done before the code was repealed.

2.

There was no reason to think that a retrial before a new magistrate would not

be fair as, within the experience of the court, the previous conviction does not

affect the mind of the new magistrate. The argument against retrial would mean

that no retrial could ever be ordered.

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3. Being in custody for less that four months is not enough reason for not ordering

a retrial. If the appellant is convicted he can ask the convicting magistrate to

take that into account.