Rex V. Samuel AJayi Shodipo (1948)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Procedure—Offence in Abeokuta Magisterial District—Preliminaryenquiry and committal by Magistrate of Lagos Magisterial District—Nigeria Criminal Procedure Ordinance, section 64–Magistrates’ Courts Ordinance,section 26 (1).

Where an offence is committed in one Magisterial district, the preliminary enquiry and committal must be held and ordered by a Magistrate of that district. If a Magistrate of another Magisterial district holds the preliminary enquiry and commits the accused for trial, the preliminary enquiry, and consequently any subsequent proceedings, are a nullity.

Appeal from the Supreme Court of Nigeria.

Williams for Appellant.

Lloyd, Crown Counsel, for Crown.

The following judgment was delivered:

Verity, C.J. This is an appeal from a conviction in the Lagos Division of the Supreme Court on a charge of fraudulent false accounting contrary to section 438 (b) of the Criminal Code. The particulars of the charge are that the appellant :

” On the 2nd day of August, 1947, at Ijoko in the Colony of Nigeria being clerk or servant of the United Africa Company Limited with intent to defraud made or was privy to making a false entry in a way-bill book belonging to the said United Africa Company, his employer, purporting to show that on the said day 44 bags of palm kernels had been carried by motor lorry A4697 from Ijoko to the said Company at Lagos.”

There are several grounds of appeal but it will be convenient first to deal with that which alleges that:—

” The committal of the appellant by the Magistrate of the Lagos Magisterial District was a nullity in that the said Magistrate had no jurisdiction to hear the preliminary inquiry.”

The offence is alleged to have been committed at Ijoko, which appears from the record to be situate within the Abeokuta Magisterial District. The appellant was apprehended in Lagos and a Magistrate of the Lagos Magisterial District held the preliminary inquiry and committed him for trial in the Supreme Court. The trial was heard in the Lagos Division.

It is submitted on behalf of the appellant that by reason of section 64 of the Criminal Procedure Ordinance the preliminary inquiry should have been held by the Magistrate of the Abeokuta Magisterial District, that the matter was outside the jurisdiction of the Lagos Magistrate, that the proceedings before him are therefore a nullity, from which it would follow that the subsequent trial in the Supreme Court is a nullity also.

Section 64 provides (inter alia) :-

“Subject to the powers of transfer contained in the ordinance constituting any court the place for the 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 ; ”

and it is upon this part of the section that the appellant relies.

The point was raised at the trial and the learned trial Judge held that the Magistrate must be presumed to have acted under the provisions of section 70 of the Criminal Procedure Ordinance That section would have enabled the Magistrate to assume jurisdiction (the appellant having been apprehended in Lagos) if he had considered that ” the ends of justice would be better served ” by hearing the charge in his own district.

There is no note on the record that the Magistrate considered the matter in the light of this section or at all, and Counsel for the Crown conceded that the maxim omnia praesumuntur legitime facia is not applicable to the proceedings in a Magistrate’s Court, in which the ground for jurisdiction must appear on the face of the record.

Crown Counsel submitted, however, that the present case falls within section 64 (b) of the Ordinance which provides:—

“When a person accused of the commission of any offence by reason of anything which has been done or of anything which has been omitted to be done, and of any consequence which has ensued, such offence may be tried or inquired into by a court having jurisdiction in the division or district in which any such thing has been done or omitted to be done, or any such consequence has ensued.”

Although the language of the section is not as clear as it might be, we think that where the commission of an offence involves both an act and a consequence the charge may be heard or inquired into either in the district where the act was done or in the district where the consequence ensued. Crown Counsel submitted that in the present case the commission of the offence involved both an act (the making of a false entry) and a consequence (the defrauding of the employer). We are unable to agree with this submission. The offence of false accounting does not necessarily involve any consequence ensuing in the actual defrauding of the employer. The essence of the offence is, of course, the intent to defraud, but it is complete if such intent be proved even though no defrauding in fact ensued, and although some evidence was given that the appellant was given credit for the produce referred to in the way-bills which formed the subject of the charge upon which he was convicted together with other way-bills which formed the subject of charges upon which he was acquitted, there was no particularity about this evidence nor was it necessary in proof of the charge of false accounting. If the charge had been, for instance, that of obtaining money by false pretences then no doubt there would have been involved both the act of making the false pretence and the consequence of that false pretence, the obtaining of money, and were the act to have been done in one district and the consequence to have ensued in another, the charge might have been investigated in either district. In the present case it is clear, however, from the nature of the charge that the appellant was accused of the commission of the offence of false accounting by reason of his making a false entry in the way-bill at Ijoko, but not by reason of any consequence that ensued elsewhere, for no such consequence formed any part of the charge nor was any such consequence an ingredient thereof.

In our opinion, therefore, no jurisdiction was conferred upon the Magistrate by virtue of section 64 (b) of the Ordinance.

It was further submitted by Crown Counsel that in any event the point is covered by’section 26 (1) of the Magistrates’ Courts Ordinance, which provides that :—

” No act done by or under the authority of a magistrate shall be void or impeachable by reason that such act was done or that any act, offence or matter in respect of which such act was done, occurred or was situated beyond the limits of the district of the jurisdiction of such court.”

This section, again is not happily worded, more particularly in its reference to ” a Magistrate ” in the first line and to ” such court ” in the last line, but we do not think it has reference to the exercise of the jurisdiction of a magistrate in the hearing or investigation of causes. It refers, in our view, to such ministerial acts on the part of the Magistrate, as the issue of a warrant or summons, and sub-section (2) provides for the determination by a Judge as to where the cause or matter shall be heard where such an act of the Mdgistrate has been done outside his territorial jurisdiction.

We hold, therefore, that the Magistrate had no jurisdiction to conduct the preliminary inquiry in this case and that the proceedings before him, including the committal for trial, were a nullity. From this it follows that the proceedings in the Supreme Court were a nullity also. The conviction and sentence are therefore set aside and it is ordered that the case be tried in a court of competent jurisdiction.

Appeal allowed and trial ordered.