Commissioner Of Police V. Smart Ededey (1963)
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BAIRAMIAN, J.S.C.
When this appeal came up on the 1st November, the respondent objected that it could not be heard on the ground that the Commissioner of Police has no right to appeal, or that he could not appeal without leave.
What happened was this: the Magistrate convicted the respondent, but on appeal the High Court acquitted him; and the Commissioner of Police has appealed against the acquittal on grounds alleging error in law.
The question turns on the meaning of section 69 of the Magistrates’ Courts Law, cap. 74 in the 1959 Laws of Western Nigeria, which provides that:-
“( 1) Any person aggrieved by a decision of the appeal court [viz the High Court] in a criminal case may appeal to the court of further Appeal [viz the Supreme Court of Nigeria] on a matter of law but not of fact or of sentence save with the leave of the court of further appeal.”
(The other subsections are on procedure and powers).
The rival contentions are these: for the respondent, that the opening words “any person aggrieved”, refer to an accused person only; for the appellant, that they include the prosecutor. The interpretation must take account of the preceding sections on criminal appeals from magistrates to the High Court.
If an accused person pleads not guilty but is convicted, he may under section 66 (subject to some exceptions which are not material here) appeal from the magistrate to the High Court. There is no dispute that he is aggrieved by the conviction.
The prosecutor is given a right of appeal by section 68, which provides
“68. Where an accused person has been acquitted of an order of dismissal made by a magistrate the prosecutor may appeal to the appeal court from such acquittal or dismissal on the ground that it is erroneous in law or is in excess of the jurisdiction of the magistrate.”
That shows that the prosecutor is regarded as aggrieved by an acquittal or order of dismissal which is erroneous in law or is in excess of the jurisdiction of the magistrate; from which it follows that if his appeal to the High Court is dismissed, he is a person aggrieved by the decision of the High Court upholding the acquittal or order of dismissal, and may therefore appeal from that decision to the Supreme Court under section 69.
The second appeal is necessarily like the first appeal, on a matter of law. In substance the prosecutor admitted grievance is an acquittal or order of dismissal that is wrong in law. That being so, we also think that if the High Court, upon an appeal by a convicted person, makes an order of acquittal or of dismissal, the prosecutor may appeal under section 69 as a person aggrieved thereby on the ground of error in law.
Otherwise we would get this situation: that if the accused person is acquitted by the magistrate and the acquittal is upheld by the High Court, the prosecutor may appeal from the High Court; but he may not appeal from the High Court if the accused person is convicted by the magistrate and is acquitted by the High Court.
That absurd situation is avoided by the wording of section 69, which does not say that a prosecutor who has appealed under 68 and failed may bring a second Appeal; it speaks merely of a person aggrieved by the decision of the High Court. As already stated, the prosecutor’s admitted grievance is an acquittal or order of dismissal that is erroneous in law, and in our opinion he may appeal as of right from the High Court under section 69 on a matter of law.
Appeals as of right from the High Court are governed by section 117 (2) of the new Constitution, formerly section 110 (2) of the 1960 Constitution of the Federation. Such an appeal lies in:-
“(f) Such other cases as may be prescribed by any law in force in the territory.
The section 69 discussed above is one such other case.
The preliminary objection fails, and the appeal will be heard on matters of law.
E.S.C.291/1963
