Abu Bakare V Inspector General Of Police (1967)

ADEMOLA, C.J.N.

The appellant was charged before the Acting Chief Magistrate, Lagos on two counts, namely:-

1. Unlawful carnal knowledge contra section 357 Criminal Code and

2. Unlawful and indecent assault contra section 360 Criminal, Code.

The learned Chief Magistrate discharged him on the second count, about which more anon; on the First count he found that penetration was not proved and therefore convicted him of an attempt to commit the offence sentencing him to a term of 4 years I.H.L.

On appeal before the learned Chief Justice of the High Court, the learned Chief justice found that on the evidence before the learned Chief Magistrate it was clear that penetration was proved, and that the appellant should have been convicted of the full offence.

In the penultimate paragraph of his judgement, the learned Chief Justice said-

“By virtue of the powers vested in me under section 36 (2) ( C ) of the High Court of Lagos Act, and after hearing counsel for the appellant, I annul the conviction and convict the appellant of rape. The sentence will, however, stand.”

Now it is obvious that reference to section 36 of the High Court Act was clearly wrong as this section of the act deals mainly with the supervisory powers of a judge. Section 36 (1)empowers the chief Justice of the High Court of Lagos to request specified magistrates or all magistrates to forward to him or any other judge at the expiration of every calendar month, a list containing all criminal cases, or specified criminal cases decided by or brought before such magistrates.

Section 36 (2) reads

“Upon receipt of such list the judge may if he thinks fit call for a copy of the record of any case included therein, and, either without seeing such record or after seeing such record as he may determine, and either without hearing argument or after hearing argument as he may determine, may, in relation to the judgment, sentence or other order of the magistrate,

Annul the conviction and convict the accused of any offence of which he might have been convicted on the evidence, and sentence him accordingly: Provided however that any sentence so awarded shall not be greater than the sentence awarded by the magistrate. ‘

It is clear that the learned Chief Justice was not exercising his powers of revision here, and we assume that this reference to section 36 (2)(c) was really a mistake for section 40 of the High Court Act which deals with the power of the High Court in criminal appeals from magistrates. The provisions of section 40 of the High Court of Lagos Act with the relevant sub sections are as follows-

’40. On the conclusion of the hearing of an appeal from the Magistrates Court in a criminal case the High Court shall at the same or any subsequent sitting pronounce judgement on the appeal and in giving such judgement the court may

(a) On an appeal against a conviction, or against both conviction and sentence

(i) affirm the conviction, or conviction and sentence; or

(ii) quash the conviction and sentence and acquit or discharge the appellant, or order him to be retried by a Court of competent jurisdiction or commit him for trial; or

(iii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence; or …”

The question is into which of the three categories of section 40 (a) can we classify the act of the learned Chief Justice when he said ‘I annul the conviction and convict the appellant of rape.’ ?

Counsel for the appellant has urged us to say that he was acting under section 40 (a) (ii) because the order of annulment is tantamount to quashing the conviction. After quashing the conviction, counsel argued, it was open to the learned Chief Justice to make one of the three consequential orders in the subsection, namely, quash the sentence, and acquit or discharge, or order the appellant to be tried by a court of competent jurisdiction or commit him for retrial. Not having done any of these, counsel argued, the mere annulment of the conviction means that the conviction has been completely washed out and it was not competent again for the learned Chief Justice to convict and sentence.

Learned senior state counsel agreed that it would appear that the Chief Justice was acting under section 40 of the High Court Act, but felt that subsection (a) (iii) was appropriate in the circumstances.. and that under this the learned Chief Justice had the power of substitution after annuling the conviction.

We are unable to agree with the learned senior state counsel on this because there is nothing in subsection (a) (iii) to suggest that the court may annul a conviction before altering a finding. We agree with the decision in The Commissioner of Police v. Ayiku, 5 W.A.C.A. 89, and in our opinion, where on appeal the court thinks section 40 (a) (ii) is appropriate and quashes a conviction and sentence, one of the three consequential orders under the subsection must be pursued by the court.

We have given some consideration to this case and we have come to the conclusion that in the circumstances it would be best to quash the conviction and sentence passed by the learned judge of appeal and order that the appellant be retried in the High Court and we so order. We cannot understand why he was tried in the Magistrate Court in the first instance for an offence of such a nature.

We observe in the record of appeal that the learned magistrate who heard the case acquitted the appellant on the second count of indecent assault, and the reason given was that the evidence on that charge was the same as on the first count. This is clearly wrong. A cursory glance at paragraph 311 of Brett and McLean Criminal Law and Procedure’ would help the learned magistrate in future. The answer, in such circumstances, is for the court to abstain from recording anything on the other count.

Other Citation: (1967) LCN/1536(SC)