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






Hon. Mr Justice E. Livesey Luke- Presiding

Hon. Mr Justice C. A Harding - Justice of the Supreme Court

Hon. Mr. Justice O.B.R Tejan - Justice of the Supreme court

Hon. Mrs. Justice. A. Awunor-Renner - Justice of the Supreme court

Hon. Mr. Justice .S. B. Davies - Justice of the Supreme court


Charles Margai, Esq - Counsel for The Appellant

N.D Tejan-Cole, Esq- D.P.P for The Respondent

JUDGEMENT DATED - Delivered on the 24th day of February, 1982.


This is an appeal from the decision of the Court of Appeal in holding that the trial, conviction and sentence of the accused in the High Court was a nullity because the Court lacked jurisdiction. The accused was charged with murder and was arraigned three times before a jury in the High Court because of two previous adjournments. On each arraignment, a new set of jury was empaneled but those in the previous sitting were not discharged. On the third arraignment, the trial proceeded and the accused was convicted of manslaughter and sentenced to life imprisonment.


The key issue for determination by the Court was whether the Court of Appeal was right in holding that the High Court lacked jurisdiction to entertain the trial, conviction and sentence of the accused because the trial commenced in the first arraignment before the first set of jury was incomplete or still pending.


The Supreme Court in determining this issue addressed its mind to the issue of empaneling and discharging the jury. It was the view of the Court of Appeal that a jury once empaneled, must be the same until the trial is complete and they relied on Section 181 of the Criminal Procedure Act of 1965. The Supreme Court however held contrary to this relying on Sections 162 and 165 of the Criminal Procedure Act 1965 which said provisions make for choosing a new set of jury at every sitting of the Court on a criminal trial with a jury. As such, by these provisions, the same jury cannot sit on the same trial at every adjourned date.

However, the Court said that the jury must be discharged at every adjournment of the trial. Nevertheless, it is not the duty of the trial judge to discharge the jury thereby overruling the decision in the case of Dauda Kamara v The State 1976. The Court said that it is the duty of the Registrar of the Court to discharge the jury. The Court furthered that if the judge before whom the jury is empaneled is also given the authority to discharge the jury, it may lead to a mistrial if that judge should die before the trial is complete. This notwithstanding, even where the jury had not been discharged as was seen in this case, subsequent arraignment and trial before a new jury cannot be deemed a nullity because by virtue of following the provisions of Sections 162 and 165 of the Criminal Procedure Act 1965, they are discharged. Thus, the appeal in the Court of Appeal was dismissed.

Written by: Shaday Kanu

Edited by: C.M Jonah


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