(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. OSMAN EL TOM KOKO

AC-CP-166.1967

Principles

Criminal Procedure—procedural irregularity—Major Court tried by a President whose name did not appear on the convening order—Proceeding became ultra vires

  A Major Court was conducted by the President whose name did not appear at all on the convening order. Such defect in the constitution of the court is a grave mistake and must lead to the quashing of the proceedings as ultra vires.

Judgment

Galal Ali Lutfi J. dissenting: “Such procedural irregularity is not a mistake which is grave enough to nullify by itself the whole proceedings of the court.”

             Abdel Mageed Hassan 1. July 3, 1967: —On May 25, 1966, His Honour the Judge of the High Court, Khartoum, convened a Major Court to be held at Omdurman North Court on December 24, 1966, for the trial of Osman El Tom Koko under the Sudan Penal Code, S. 259. The Major Court was to be presided over by Sayid/ Ahmed Abdel Rahman, first class magistrate. The members were Sheikh Mohamed El Amin Abul Gasim and Sheikh Awad Salih, both third class magistrates. The original date of trial was altered in ink to be February 9, 1967, and on that date the trial started but under the presidency of Sayid/ Mamoun Mohamed El Sayid who did not appear at all on the convening order.

          This is completely wrong and the whole proceedings must be quashed

as ultra vires .it is needless to point out that greet attention suold be given to the convening order because any defect in the constitution of the court must lead to the quashing of the proceeding and thus to unnecessary duplications of work and delay of justice.

         The proceedings must therefore be quashed and the case be sent back for retrial after a proper convening order be made. The retrial should take into account the period accused had served when passing the new sentence.

        Abdel Magid Imam J. July 3, 1967: —I agree. This was a grave mistake.

      Galal Ali Lutfi J. July 6, 1967: —I regret that I do not agree with my learned colleagues that the proceedings be quashed and the case be sent back for retrial. It is true that the magistrate (Mamoun El Sayed), who presided over the Major Court is not the magistrate (Ahmed Abdel Rahm,( whose name appeared in the convening order. I also agree that it was a mistake on their side not to ask His Honour the Judge of the High Gourt, Khartoum, before the commencement of the trial to make the necessary alterations in the convening order. But in spite of all this, I am of opinion that it is not a mistake which is grave enough to nullify by itself the whole proceedings. In my view the quashing of both finding and sentence for this irregularity alone is not supported by law or practice.

       Code of Criminal Procedure, s. 261, makes it clear that it is improper for the Confirming Authority to interfere with the finding and sentence on the grounds of technical error in procedure. It reads as follows:

“   The Chief Justice (now the Supreme Court) or Governor (now Judge of the High Court or Province Judge) shall not in the exercise of his appellate or confirming jurisdiction interfere with the finding or sentence or other order of the court on the ground only that evidence has been wrongly admitted or that there has been a technical irregularity in procedure, if he is satisfied that the accused has not been prejudiced in his defence and that the finding and sentence or order are correct.”

       Commenting on the Indian Code of Criminal Procedure, s.537 Sohoni, in his book III Code of Criminal Procedure (15th ed. 1962), p. 3106, states:

"       Section 537 lays down in general that no finding, sentence or order passed by a Competent Court should be reversed or altered in appeal or revision on account of any error, omission or irregularity in the proceedings before or during trial unless it has occasioned a failure of justice. The Code is a Code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities.”He goes on to so

“....... as in all procedural laws, certain –things are regarded as vital. disregard of or a provision or tnat nature is: fatal to the trial  at once invalidates the conviction. Others are not vital, and whatever the irregularity, they can be cured, and in that event the conviction must stand unless the court is satisfied that there was prejudice.”

     From this it is clear that the quashing of proceedings will not be justified unless the procedural error is vital or that the accused can show substantial prejudice. If the error is not vital and the accused is not prejudiced, then the Confirming or Appellate Authority should not interfere with the finding or sentence for mere technical irregularity. In the case before us the irregularity is not a vital one and the accused did not complain that he was prejudiced by it. On the contrary the accused will suffer a great deal if he is to stand the ordeal of another trial and to repeat the whole affair again simply because the name of the presiding magistrate was not substituted for the name of the magistrate whose name was mentioned in the convening order.

      Code of Criminal Procedure, s. 12A, provides that as far as possible all Major Courts must be presided over by the Judge of the High Court or the Province Judge of the circuit. If the Judge of the High Court or Province Judge for some reason or another cannot preside, Code of Criminal Procedure, s. 9 (1), gives him the power to nominate a magistrate of the first class to preside. The magistrate nominated to preside is usually the one responsible for the magistracy in his area. If he goes on leave or is transferred the person who takes over his place usually gets the consent of the Judge of the High Court or Province jludge to put his name in the place of the previously nominated President i:n order to try such cases. It is not so important a matter as to send the case to the High Court or Province Court to reconsider the question as to who is to preside. Sometimes this is done by an ordinary letter or wire or even by telephore. And as long as the Judge of the High Court or Province Judge who is responsible for the circuit has nothing against the competent magistrate who runs the court in the absence of the one named the consent to preside over Major Courts is rather automatic and as far as I remember it was never refused. It is a procedural matter which has nothing to do with the accused as far as the President is a competent magistrate with first-class powers. It makes no difference to the accused if the Major Court is presided over by X who is a first class magistrate or by Y who enjoys the same powers. How absurd it will appear to those connected with this case (e.g., accused, prosecution witnesses, etc.) if the same magistrate presided over the retrial, again telling them that he will rehear the whole case simply because his name did not appear in the convening order.

In my opinion this is the type of case which is curable under Code of Criminal procedur,s.261. and if this section cannot be resorted to in this very simple irregularity, I do not know when and where it can e applied. As far as I can recall in such cases the papers will be sent to His Honour, Judge of the High Court to agree and to ratify the convening order which will be done as a matter of routine with a short note to the magistrate drawing his attention to the said irregularity. And since this case was forwarded to us through His Honour Judge of High Court it is obviously clear that he did not object to the trial being conducted by the presiding magistrate (Mamoun El Sayed)

       The only Sudanese case which I know of and which deals with the subject of curable and incurable procedural errors is the case of Sudan Government v. Fayez Ghali Girgis & Another, AC-CP-32-1957, (1957) S.L.J.R. 74, where it was held that the procedural error which was a misjoinder of trial was not a curable one. M. A. Abu Rannat, Chief Justice, in support of his argument regarding this vital error of joint trial which was a fatal one, quoted the same Indian authority (Sohoni) whom I have mentioned before referring to a Privy Council decision which reads as follows:

“Their Lordships are unable to regard the disobedience to an express provision as to mode of trial as a mere irregularity.”

But our case is totally different from the case quoted above. In that case, Sudan Government v. Fayez Ghali Girgis & Another, the accused was substantially prejudiced by the misjoinder and the error was a vital one. In our case the error is a very simple one and of very little importance. Moreover, there is nothing to indicate that it had any effect on the trial so as to prejudice the accused or hamper justice.

In conclusion may I suggest to remit this case to the Court of Criminal Appeal under Code of Criminal Procedure, s. 261 A, in order to have Code of Criminal Procedure, s. 261 fuly discussed and to avoid divergence of opinion in future when determining any issues of procedural errors and irregularities?

ORDER: Abdel Magid Hassan J. January 20, 1968—We have quashed the proceeding. A new trial must be commenced after a proper convening order. The retrial court should account for the period accused had served.