James Edun And Others V Inspector-General Of Police (1966)
LawGlobal-Hub Lead Judgment Report
BRETT J.S.C.
The appellants were convicted by the Chief Magistrate, Warri, on a charge containing two counts. Their appeals to the High Court were dismissed and they have now appealed to this Court.
The material parts of the charge originally read-
‘1st Count:-That you took without lawful authority 3 ballot boxes which were in the possession of one Henry Edema which ballot boxes were to be used in the Mid-West Region election and thereby committed an offence contrary to section 59 (1) (g) of the Western Nigeria Parliamentary Electoral Regulations, 1960.
2nd Count: That you stole from Henry Edema’ (a number of named articles) ‘and immediately before the time of such stealing did threaten to use actual violence to the said Henry Edema and thereby committed an offence contrary to section 341 of the Criminal Code and punishable under section 342 of the same law.’
The record of the proceedings on the 19th October, 1964 reads-
‘Charges read to the 13 accused persons and each elects summary trial and plead: Not Guilty to both counts. Bail £200 and 1 surety each. Inspector Amu for Police. Each accused in person. Adjourned 23-10-64 for hearing at the instance of accused persons.’
When the case was resumed on the 23rd October the accused were represented by counsel, who immediately took objection to the wording of holding that it did not. That does not conclude the matter, since section 21(1) (a) of the Magistrates’ Courts Law in force in Mid-Western Nigeria appears to give a Chief Magistrate power to deal summarily with an offence for which the maximum penalty does not exceed a fine of E500 or imprisonment for five years without giving the accused person the option of being tried in the High Court, notwithstanding section 304 of the Criminal Procedure Act. When section 21 (1) (a) of the Magistrates’ Court Law was brought to the attention of Mr. Boyo, who appeared for the appellants, he did not argue the question, but pointed out that the section would not apply to the count for robbery with violence and submitted that on the amendment of the first count the Chief Magistrate ought to have asked the accused persons again whether they elected summary trial on the second count.
For this submission Mr. Boyo relied on the decision of the West African Court of Appeal in R.v.Ijoma (1947) 12 W.A.C.A. 220, where the Court said “We have no doubt, however, that where the word ‘charge’ is used in section 162 and 163 of t he present Ordinance it refers to the document whereupon the accused is charged and includes, therefore, a document which may contain more than one statement of an offence.”This appears to be first case in which this point has been taken. In Jones v. Police (1960) 5 F.S.C.38,which is the authority for saying that on the amendment of a charge alleging an indictable offence the accused must be given a fresh opportunity of electing summary trial, there was only one count in the charge. As the West African Court of Appeal pointed out in R.v.Ijoma,the Criminal Procedure Act uses the word “charge” in a way which may prove misleading, and in some sections of the act such as section 156 the word can only mean an accusation or count. We do not doubt the correctness of the decision in R.v.Ijoma, but in view of the different meanings which the word “charge” bears in different sections of the Act a decision on one section cannot be conclusive on the meaning to be given to the word in another section.
Section 304 (2) lays down the procedure to be followed “If a magistrate at any time during the hearing of a charge for such an indictable offence becomes satisfied that it is expedient to deal with the case summarily’, and requires that he shall, among other things, cause the charge to be reduced,” In this context it is impossible to regard the word “charge “as meaning a document, and in our view for the section was sufficiently complied with in this case. The reason given for the decision in Jones v. Police was that “it may be that other matters have been introduced into the amended charge for which the accused would prefer to be tried by a judge, his consent to being tried summarily not having gone any further the first count as not diclosing an offence. Prosecution applied to amend it by deleting the words “were to be used” and substituting the words “then in use”, which brought it into conformity with the wording of the regulation, and the record goes on-
“Amendment granted. Amended charge read to accused persons and they plead not guilty.”
The trial then proceeded in the ordinary way.
The first three grounds of appeal argued complain that the Chief magistrate failed to comply with sections 164 and 304 of the Criminal Procedure Act after amending the first count. It is said that there were three irregularities; (a) that the record fails to show that each of the accused persons was called on to plead separately to the amended charge; (b) that the Chief magistrate omitted to ask the accused persons if they were ready to be tried on the amended charge; and 9c) that the Chief Magistrate omitted to ask the accused persons if they elected to be tried summarily on the amended charge. The first two of these submissions relate to section 164, and the third to section 304.
We do not regard the first submission as well founded. It would have been better if the chief Magistrate had written “each pleads not guilty” instead of “they plead not guilty”, but they were represented by counsel who took no objection to the course adopted, and asno attempt has been made to supplement the record by any further evidence of what took place we think it may safely be assumed that the correct procedure was followed.
As regards the second, it is true that the Chief Magistrate ought to have asked the accused if they were ready t be tried on the amended charge, but, as the Director of Public Prosecutions has pointed out, subsections (2) and (3) of section 164 show that even if an accused person says that he is not ready the court has to consider the reasons he gives and decide whether any prejudice is likely to result if the trial is proceeded with. It must be presumed that defending counsel would have asked for an adjournment if he was not ready, and o grounds have been put forward for supposing that any prejudice has resulted from the Chief Magistrate’s omission. So far as that submission goes we hold that although it is technically well founded no substantial miscarriage of justice has occurred.
The third submission was originally made in relation to the count which was amended, that is the count under the Parliamentary Electoral Regulations. The maximum penalty for an offence under regulation 59 is imprisonment for a term not exceeding two years or a fine of E500, or both. That makes it an indictable offence within the definition in section 2 of the Criminal procedure Act, and we must rule that the learned judge in the High Court misapplied the decision in R.V. Eze (1950) 19 N.L.R.110, in than the original charge” and as this reason cannot apply where a count for an indictable offence is left unimpeded we do not regard the decision as one which we need extend to such to such a case.
The next ground of appeal deals with the proper interpretation of regulation 59 of the parliamentary Electoral Regulations which provides for the punishment of anyone who “without due authority takes, opens or otherwise interferes with any ballot or packet of ballot papers then in use for the purpose of the election.” Henry Edema had received a letter appointing him presiding officer for the Agogbororo Polling Station and had been g given three ballot boxes and a supply of ballot papers and other stationery for use at the Polling Station. He was on his way to the Polling Station at about 12.30am.on the day when the election was due to be held when, according to the facts found by the Chief Magistrate, the appellants and a number of other persons, all carrying weapons, stopped him and took away the ballot boxes, ballot papers and other articles, with threats of violence.
It is submitted for the appellants that on these facts the ballot boxes were not “then in use for the purpose of the election.’ Both the Chief Magistrate and the judge considered this question with care and each supported his view by arguments based on the interpretation of “use” and other words on other statues. With respect, we do not find these decisions helpful for construing this particular regulation, and we think the true distinction is that pointed out by Ungoed-Thomas, J., in Bliss v. Small borough R.D.C. {1963}1 W.L.R.1155, where he said “I would hesitate to conclude that land could properly be described as “in use’ or ‘used’ as land on which a caravan is stationed, if the use was mere preparation of an entirely new site for caravans.”Applying this distinction, we find the first thoughts of the person who drafted the charge preferable to his second thoughts, and although a count alleging that the ballot boxes “were to be used for the purpose of the election “Fails to disclose an offence under regulation 59 we consider that it describes the position more accurately than the amended count, with its allegation that the boxes “were then in use” for that purpose.
It might lead to embarrassment in the future if we tried to lay down precisely where the line is to be drawn between preparation for use and use, and we need only say that in our view the preparatory stage had not been passed in this case. as regards arguments based on the purpose of the legislation, if the legislature wishes to do so it can always make it an offence to interfere with the necessary preparations for the conduct of an election; it has not interfere with the necessary preparations for the conduct of an election; it has not done so in regulation 59(1) (g) and it may have regarded the ordinary criminal law as sufficient. For this reason the appeals are allowed on the First count, the convictions and sentences are set aside and verdicts of not guilty are entered.
As regards the second count, there was ample evidence to justify the convictions, and we need only consider two specific points that have been argued. There was a dispute whether Henry Edema had been validly appointed as Presiding Officer for the Agogbororo Polling Station, and the second appellant maintained that he himself had been appointed to that office, or at least that he had reasonable grounds for believing so, and that in taking the ballot boxes and other articles from Henry Edema he was acting under an honest claim of right, and without intention to defraud, or in the honest and reasonable belief that he had due authority to act as he did, in which case he would be entitled to be acquitted under section 21 or section 23 of the Criminal Code of Mid-western Nigeria. This submission would have carried more weight if, after removing the articles from Henry Edema, the second appellant has gone to the Polling Station in order to carry out the duties of Presiding officer himself, but he did not do this, and we think the courts below were right in rejecting the submission.
The same may be said of the first appellant’s submission that as a candidate in the election he had some special rights of intervention. Finally it is submitted that a document prejudicial to the second appellant was wrongly admitted in evidence as Exhibit W.
This was a document signed by him and tending to show that he had been concerned in stopping the polling at another station; it was put to him in cross-examination and we think it was admissible as showing that he was not, as he claimed, acting in good faith as a person who believed himself to be the duly appointed Presiding Officer for Agogbororo Poling Station.
No grounds have been shown for reversing the convictions on the second count, and the appeals of all the appellants are dismissed as regards that count.
Other Citation: (1966) LCN/1355(SC)
