Ikara Ubok Usan V. The State (1978)

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OBASEKI, JSC.

We dismissed the appellant’s appeal in this matter on the 15th day of June, 1978, and now give our reasons. The appellant was arraigned before Ete, J., sitting at Uyo in Uyo Judicial Division of the High Court of Justice, South Eastern State (now Cross River State) of Nigeria on a charge of the murder of his wife by name Mary Ikara.

After making his plea, he was tried, convicted and sentenced to death. He really offered no defence to the charge but repeated almost word for word the confessional statement he made to the investigating constable giving as the cause for the killing the refusal of his wife to satisfy his sexual desire when facts arousing his suspicion that she was having illicit sexual intercourse with his brother were available to him and giving him cause for intense annoyance.

Aggrieved by this conviction, the appellant appealed. At the hearing of the appeal, with leave of this court, Mr. F. O. Akinrele, counsel for the appellant withdrew the original grounds filed and argued the following ground: “The learned trial Judge erred in law in assuming jurisdiction under Section 70 of the Criminal Procedure Law when there were no facts before him to satisfy the conditions necessary for such assumption of jurisdiction and thereby rendered the trial a nullity.”   Counsel submitted that it was mandatory and incumbent on the prosecution to lay before the learned trial Judge facts to satisfy the provisions of Section 70 of the Criminal Procedure Law.

These facts he submitted were: (1) That the accused was apprehended within the Judicial Division of the court (2) That the accused person was in custody within the Judicial Division; (3) That the court was within easy reach of both the accused and the witnesses.   Counsel then observed that the offence was committed in Eket Division but tried in Uyo Division and that besides the application of State Counsel to the court to assume jurisdiction under Section 70 of the Criminal Procedure Law on the grounds of convenience, there were no facts on record on which the learned trial Judge could properly invoke its powers under Section 70 of the Criminal Procedure Law and assume jurisdiction.

He contended that the learned trial Judge appears to have assumed jurisdiction mainly on the ground that the parties mutually agreed that it would be more convenient to have the trial at Uyo. He submitted that consent alone cannot confer jurisdiction on the court and that before the court could assume jurisdiction there must be statutory authority.   We observe that the proceeding being complained of was the proceeding of 8th December, 1969. It was a short proceeding and reads: “Accused present Mr. Y. W. Bassey appears for the State Mr. H. R. Inem appears for the accused. Charge read out and explained to the accused   Mr. Bassey: Although the offence was committed in the Eket administrative division, I am applying under Section 70 of the Criminal Procedure Law to have this case tried in the Uyo Judicial Division which is more convenient to all the parties.

Mr. Inem: I have no objection to this application Order: This case to be tried at the Uyo Judicial Division.” Be that as it may, the Information dated 2nd October, 1969, on which the accused person was tried, reads: “At the session Holden at Uyo on the 8th of December, 1969, the court is informed by the Attorney-General on behalf of the State of Ikara Ubok Usan is charged with the following offences:   Statement of Offence Murder, contrary to Section 319 of the Criminal Code   Particulars of Offence Ikara Ubok Usan on 17th day of March, 1969, at Udung Uwe, Oron in the Uyo Judicial Division murdered Mary Ikara. Signed B. Mbrey Bassey State Counsel”   It is clear therefore, that the Information speaks of the offence having been committed in the Uyo Judicial Division.

The Information was not amended and it would appear the application of the learned State Counsel was irrelevant although there was no objection to it. Section 64 of the Criminal Procedure Law reads: “Subject to the powers of transfer contained in the law constituting any court the place of trial or investigation of offences by such court shall be (a) an offence shall be tried or inquired into by a court having jurisdiction in the division or district where the offence was committed.” It seems to us therefore that under Section 64 of the Criminal Procedure Law, the court of trial was fully seised of jurisdiction in the matter and the issue of assuming jurisdiction did not arise.

The objection of counsel therefore appears to us to be misconceived and the learned trial Judge’s order was superfluous, unnecessary and also misconceived. Assuming for a moment that the order for assumption of jurisdiction was necessary under Section 70 of the Criminal Procedure Law, we think that in the circumstances of this case where all the witnesses and the accused person were resident within the judicial division, the order of the learned trial Judge was a proper exercise of his discretion.

The provision of that section reads:   “(1) Notwithstanding the provisions of Sections 64, 65 and 67 a Judge or magistrate of a division or a district in which a person is apprehended who is charged with an offence alleged to have been committed in another division or district, may, if he considers that the ends of justice would be better served by hearing the charge against such person in the division or district in which he has been apprehended and having regard to the accessibility and convenience of the witnesses proceed to hear the charge, and the person charged may be proceeded against, tried and punished in any division or district in which he was apprehended or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence as if the offence had been committed in that division or district, and the offence shall for all purposes incidental to or consequential on the prosecution, trial or punishment thereof, be deemed to have been committed in that division or district:    

Provided that   The case of Rex v. Samuel Ajayi Shodipe 12 WACA 374 cited to us was a case of a Magistrate in Lagos holding preliminary inquiry into an offence committed at Ijoko a place outside Lagos and the jurisdiction of the Lagos Magistrate’s Court. The case is not on all fours with the facts of the instant appeal, is inapplicable, and unable to support the appellant’s contention.   The primary considerations required of the trial Judge by Section 70 of the Criminal Procedure Law are: (1) That the ends of justice would be better served by hearing the charge against the appellant in the Uyo Judicial Division: (2) That the appellant was apprehended or in custody within Uyo Judicial Division: and   PAGE| 5   (3) Accessibility and convenience of the witnesses.  

The Learned counsel for the appellant was unable to point out any fact tending to indicate a miscarriage of justice or that the appellant was not apprehended or in custody in Uyo Judicial Division or that the witnesses were not accessible or were put to great inconvenience. A perusal of the record of proceedings showed that the appellant was apprehended and in custody within the Uyo Judicial Division and that all the witnesses but one and the appellant were at the material time within the judicial division.

For the above reasons, we dismissed the appeal.

Other Citation: (1978) LCN/1986(SC)