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The following joint judgment was delivered :-
PETRIDES, C.J., GOLD COAST, WEBB, C.J., SIERRA LEONE, AND BUTLER LLOYD, AG. C.J. NIGERIA.
The whole question raised by this Court is whether the learned Judge of the Divisional Court in ordering a fresh trial was acting within the powers conferred on him by section 319 (1) (a) (i) of the Criminal Procedure Code.
Counsel for the Appellant argues that this subsection in itself permits of three alternative courses :-
1. To reverse the finding and sentence and to acquit or discharge the accused.
2.To order the accused to be retried. 3. To commit him for trial
and this would appear to have been the view taken by the learned Judge of the Divisional Court, but in our opinion it is not the correct reading of subsection (a) (i) which is itself one of four alternatives.
In a case to which subsection (a) (i) is appropriate the finding and sentence must first be reversed and then three alternatives are open to the Appellate Court :-
1. To acquit or discharge the accused.
2.To order him to be retried. 3. To commit him for trial.
We do not think that the word" reverse" has any restrictive significance. It may be taken as including" set aside" or" annul" as appears from the Indian Reports in relation to an exactly similar subsection-c f. Sohoni p.889 et seq.
In the case of want of jurisdiction in the Trial Court" annul" would appear to be the most appropriate word to use.
We therefore affirm the order of the Divisional Court for a new trial.
The appeal is dismissed.