Samuel Lomba v S (CR APP 1 of 1981) [1982] SLSC 3 (24 February 1982)

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Coram

The Honourable Mr. Justice E. Livesey Luke,C.J.- Presiding The Honourable Mr, Justice C,A, Harding = 568.0, The Honourchle Mr, Justice 0,B.R, Tejan = TSC. The Honourable Mrs.Justice A.V.Awunor-Renner = J+S.Ce ‘The Honourable Mr, Justice S, Beccles Davies - J+5+Cr CRIMINAL APPEAL No. 1/81 BETWEEN: SAMUEL LOMBA 9 = APPELLANT AND THE STATE = RESPONDENT CHARLES MARGAI, ESQ., for Appellant = N.D, TEJAN-COLE, ESQ., D.P.P. for Respondent JUDGMENT ee Delivered op 24th day of February, 1982+ BECCLES DAVIES, J,S.0.1- The Appellant wae firet arraigned before the High Court in Bo on 5th February, 1979, He had been arraigned for the offence of murder. A Jury had been empaneiied and sworn to try him on Bet Pepruaryy 1979. He was given in charge of the Jurys Prosecuting Counsel caiied six witnesses, after which he applied to the trial judge on 2nd March, 1979 for 8° adjournment to the following sessions as he had encountered Some difficulty in locating a vita witness for the prosecutzons The Tried judge granted tne application with considerahhe reluctance. the case was not tried af the immediately succeeding sessiona, xt wae on 29th Mays 1979+ again adjourned to the susoseaing sonctons weson were 6° commence on 18th September,

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On 2rd October, 1979, during the currency of the

September 1979 sessions, the appellant was again arraigned.

A fresh jury were empanelled, and he was given in their charge, Bight witnesses testified for the prosecution, Prosecuting Counsel then applied for an adjournment of the trial to the following sessions as his last witness was still inavailable. The trial judge granted the adjournment with the same reluct~ ance he had expressed on the first occasion.

Then came the November sessions, The end of the road was in sight. The appellant was arraigned for the third time, ‘The third jury were empanelled on 26th November 1979. . The trial of the appellant was gone through without any Ampediment. The jury found the appellant not guilty of murder, He was however found guilty of manslaughter and eontenced to imprisonment for life.

cme appellant presented appeals againat his conviction and sentence respectively, to the Court of Appeal, Fave grounds of appeal were before the Court of Appeal, The fifth ground emerged as a result of the Director of Public prosecutions’ intimation to the Court of hie view that the tnira arraignment, trial and conviction of the appellant vere a nullity. counsel for the appellant in consequence

of the Director of Public Prosecutions! intimation to the court formulated a Eround of appeal in these terms ~ mat the trial in the Court below vas a nullity as te Court had ne jurisdiction to entertain trial." nat wae the only eround of appeal argued before that Court. ¢ mnandoned the other grounds and counse1 for the apperin” tnat ne had done

90. The Court of Appeal accepted before UP [Biseeee

(Warne, Davies and Short JJ,A.) delivered a written judgment on the issue, Warne, J,A, in delivering the judgment of the Court had said - ‘ "The jury sworn on the 21st February, 1979 was never discharged and as such the trial which commenced on that date was still pending. . In my view the Court had no jurisdiction to start a new trial with a fresh jury on the 18th September, 1979. This trial in law ie & nullity. ‘The appeal therefore must needs succeed and the appeal is allowed. However, the provision of S.59(5) of Act No.31 of 1965 in my opinion is applicable. $.59(5) states ‘Where the Court of Appeal is | of épinion that the proceedings in the triai Court were & nullity, either through want of 4 jurisdiction or otherwise, the Court may cedar the appellant to be tried by @ Court i of competent jurisdiction.' he Court vill not order the appellant to be tried by a Court of competent Jurdeuse the trial which started on tetera 38 Stine oo _* The appeziant 40 remandsa ffi custody." ‘ne appeilant wae Gissatisfied with the last two j paragraphs quoted above bY wnsch Se Court of Appeal had vevterad nam go ve remanded an custody?, Wille declining to order nie trial before # Court of competent jurisdiction, : because an their views the trian of 2186 February was still pending. Pereceees

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-4e Att | _ seers atrhate rerseing that at which the appetiant | iene G counsel had experienced difficulty t ‘ lance of a vital witness for the Prosecution, The presiding Judge at those trials upon granting the application tor an adjournment had ordered that the trial was “adjourned to next sessions", There was no | order discharging the jury, It is an established rule that j when an accused is put in charge of the jury, they must 4 return a verdict unless they are discharged fron giving a verdict by the trial judge, (See R, v HEYES 1950 211 E.R.587). The Court of Appeal had placed reliance on Section 181 of The Criminal Procedure Act 1965 in support of its view that the trial which commenced with a jury on 5th February, 1979 and was adjourned was still pending. Section 181 provides ~ ‘ "Tf 9 trial is adjourned, the jurors shall be required to attend at tho adjourned sitting and at every subsequent sitting until the conclusion of the trial.” Reading that section in isolation would give the } impression that when once @ jury are ‘empanelled and the nccusea ie put in their charge, the trai can be adjourned ‘ trom session to session for further hearing with the sane jury until their delivery of a verdict. That however, is not correct, the statute has to be read ae @ whole in order to got the true intention of Parliament, There is a restriction imposed by the Provision? of Section 162 and 165 ' of the same Act. ‘They provide ~ : 1162. Whenever 4 shall be necessary to form 4 a panei of jurors to serve af ony session, ine sherssf in congunctson with an officer noninated by tne sudgey shart cause the names jy, |, a pe ee peaay ts I

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