Peter Obiyomi V. E. A. Joloko (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Criminal Procedure Ordinance, sections 2 and 63: “ summary conviction offence”—Perjury a felony under section 118 ofthe Criminal Code—Private prosecution for perjury—Defendant consenting to summary trial—Whether time limit ofsix months applies.

Facts

A Magistrate of the first Grade can try an offence summarily if punishable up to two years; if it is punishable with more, he may, if he thinks two years would be enough in the circumstances, with the consent of the defendant, try the offence summarily: (Magistrates’ Courts Ordinance, section 20 (1) briefly, so far as relevant).

The appellant began a private prosecution for perjury more than six months after the offence arose. Perjury is a felony punishable with fourteen years under section 118 of the Criminal Code.

The defendant consented to summary trial and submitted that the prosecution was out of time under section 63 of the Criminal Procedure Ordinance, which limits a private prosecution to a period of six months in respect of f “a summary conviction offence”, which is defined in section 2 of that Ordinance as “ any offence punishable by a Magistrate’s Court on summary conviction ”, etc. (text of section 2 and of section 63 in judgment infra).

This submission was upheld by the Magistrate and in the Supreme Court. In the Court of Appeal:—

Held

The definition of a summary conviction offence in section 2 of the Criminal Procedure Ordinance does not include an offence triable only with the consent of the defendant/and section 63 of that Ordinance does not apply to a private prosecution for perjury: perjury is an indictable offence being a felony under section 118 of the Code; it is not stated by the Criminal Code to be triable summarily; and its character is not altered to a summary conviction offence by the election of the defendant to be tried summarily.

Appeal allowed; the trial to proceed.