Rex v Marriot and Another (Criminal Appeals Nos. 56/1935 and 57/1935.) [1935] EACA 128 (1 January 1935)

## COURT OF APPEAL FOR EASTERN AFRICA.

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya); HALL, C. J. (Uganda) and LAW, C. J. (Zanzibar).

## REX, Respondent (Original Prosecutor)

## MARRIOTT and MZITU, Appellants (Original Accused). Criminal Appeals Nos. 56/1935 and 57/1935.

Nyasaland-Criminal Procedure Code, section 222-Case committed for trial to High Court-Power of Attorney General to direct cases to be tried by Subordinate Court-No further investigation directed.

The appellants were committed for trial before the High Court on a charge of murder. Upon receipt of the depositions the Attorney General being of opinion that the case was one that could properly be dealt with in the Subordinate Court under section 235 of the Criminal Procedure Code, directed the magistrate to re-open the proceedings and deal with it in all respects as though there had been no committal for trial. He did not direct further investigation, though he gave some "suggestions in connection with the trial".

The appellants were convicted and sentenced to death under the procedure prescribed by section 202 of the Criminal Procedure Code.

$Held$ (8-8-35).—That in order to give the Attorney General power under section 222 to order a case to be tried by a Subordinate Court it is essential that he should be of opinion that further investigation is required and that he should give directions for remission accordingly.

Budhdco for the appellants.

Lewey, Crown Counsel, for the Crown.

JUDGMENT.—This murder case was committed for trial to the High Court of Nyasaland under section 222 of the Criminal Procedure Code by the Second Class Subordinate Court at Kota Kota. The Attorney General remitted the case for trial to the same Court under section 235 of the aforementiond Code.

That section reads as follows: -

"If, after receipt of the authenticated copy of the depositions and statement provided for by the last preceding section and before the trial before the High Court, the Attorney General shall be of opinion that further investigation is required before such trial, it shall be lawful for the

Attorney General to direct that the original depositions be remitted to the Court which committed the accused person for trial, and such court may thereupon reopen the case and deal with it in all respects as if such person had not been committed for trial as aforesaid; and if the case be one which may suitably be dealt with under the powers possessed by such court, it may, if thought expedient by the court, or if the Attorney General so directs, be so tried and determined accordingly.

In our opinion, in order to give the Attorney General power to order a case to be tried by a committing Court under this section, it is essential that, in the first instance, he should be of opinion that further investigation is required before such trial and that he should give directions for remission accordingly; and it is not until these necessary preliminaries have been fulfilled that the committing Court could get jurisdiction to try the case.

In the present case, the Acting Attorney General informed the magistrate concerned, by letter, that he considered the matter was one that could be properly dealt with under section 235 of the Code and directed the magistrate "to reopen the proceedings and deal with the case in all rspects as though there had been no committal for trial; that is under section 202 of the Code".

It is true that, in the letter under reference, the Acting Attorney General made "some further suggestions in connection with the trial". The learned Attorney General of Nyasaland, in forwarding the correspondence, said that he could not contend that the further investigation referred to in the letter to the magistrate was a condition precedent to the direction for the trial. In our opinion, as indicated supra, it is essential that such condition should exist and we are, therefore, compelled to hold that the trial before the magistrate at Kota Kota was a nullity. The result, in other words, is that all the proceedings subsequent to the committal for trial are of no effect. We certify a fee of $£7/7/0$ to Mr. Budhdeo payable by the Nyasaland Government.