A. O. Ejoh Vs Inspector General Of Police (1963)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN JSC

This is a Case Stated for the opinion of the Court by Onyeama, J. in the criminal appeal No. 63 CA/1962 of the Lagos High Court. The learned Judge states that the appellant was charged with an offence under section 125A (1) of the Criminal Code, which provides for a term of twelve months but does not declare that the offence is punishable upon summary conviction; that he was tried and convicted by a magistrate, grade I, who did not obtain his consent for summary trial; that he, the Judge, was of the opinion that: “any offence not stated to be punishable on summary conviction or which fell within either of paragraphs (a) and (b) of the definition of an “indictable offence” in the Criminal Procedure Ordinance was an indictable offence and adjourned a decision on the point;” and that the questions of law for the opinion of the Federal Supreme Court are:

1. Whether 1 formed a correct opinion in my interpretation of the definition of “Indictable offence” in section 2 of the Criminal Procedure Ordinance;

2. And whether the offence set out in section 125A (1) is an indictable offence.” They are questions of importance. That Ordinance came into force on the  1st June, 1945, on which date the courts system was re-organized by two other Ordinances – the Supreme Court Ordinance, and the Magistrates’ Courts Ordinance, Cap. 211 and Cap. 122, in the Laws of Nigeria, 1948. The former Supreme Court was replaced in 1955 by the High Courts of Lagos and of each Region and the former Magistrates’ Courts were replaced by those of Lagos and of each Region. The Criminal Procedure Ordinance continued in force in the Northern Region until it was replaced by its own Criminal Procedure Code at the end of September, 1960, and still continues in force elsewhere in Nigeria.

It will be convenient to begin looking at the questions of law raised through the eyes of a magistrate, grade I, taking up duty in June, 1945. There were also magistrates of the 2nd and of the 3rd grade; section 21 of the Magistrates’ Courts Ordinance enabled them to try the same offences as a magistrate of the 1st grade could under section 20, but with lower powers of punishment. Section 20 is very long, so it will be summarised.

It confers jurisdiction for the summary trial of criminal cases –

(a) Where the offence is punishable either by fine not exceeding two hundred pounds or by imprisonment not exceeding two years or by both;

(b)(i) where the enactment creating the offence declares it to he punishable on summary conviction, in which case the magistrate may impose the penalty provided, whether imprisonment, fine, or forfeiture, or all of them; (ii) where the enactment provides that an order may be made for payment of money on summary conviction in respect of an act or omission;

(c) with the consent of the accused person, where the offence is “not stated to be triable on summary conviction …and is stated by the enactment declaring such to be an offence that is punishable either by a fine exceeding two hundred pounds or by imprisonment exceeding two years or both.” The Court underlines the “and” in the text quoted from section 20(1)(c), to draw attention to its importance in the description of the offences which require the consent of the accused person for summary trial.

Section 20 goes on in subsection (2) to confer jurisdiction:

“to receive and inquire into all charges of indictable offences, and to make such orders in respect thereof as may be required by the provisions of any Ordinance for the time being in force in relation to procedure in respect of indictable offences.”

The other relevant section is No. 52, which provides that :

“The practice and procedure of the court: (b) in its criminal jurisdiction shall be regulated, in respect of summary conviction offences and in respect of indictable offences, by any Ordinance relating thereto.”

There is no definition of “summary conviction offence” or of “indictable offence” in that Ordinance, but there is this enlightening proviso in section 20(1) (c):