The State v. Samson Gali (1974)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, J.S.C
This is an appeal by the Acting Director of Public Prosecutions, (Benue-Plateau State), as applicant, against the order of Belgore, J., made in the Jos High Court on 19th February, 1974, in which he refused the application, made by the Acting Director of Public Prosecutions on behalf of the Attorney-General of the State for leave to prefer two criminal charges against the respondent. The application, made ex parte, was made under the provisions of section 185(b) of the Criminal Procedure Code of the Northern States and the two charges in respect of which the leave was sought are as follows:
“1st Head of Charge: That you, Samson Gali, on or about the 9th day of May, 1968 at Jos in the Benue-Plateau State Judicial Division dishonestly misappropriated the sum of eighty pounds (N160.00) property of Lawrence Nwagbo and thereby committed an offence punishable under section 309 of the Penal Code.
2nd Head of Charge: That on or about the 9th day of May, 1968 at Jos in the Benue-Plateau State Judicial Division, you, Samson Gali being an officer of the Federal Government of Nigeria willfully and with intent to defraud made a false entry in a book belonging to your employer-to wit: you wrote in a register that you sold a vehicle registered PL.2836 for the sum of seventy pounds instead of the actual amount of one hundred and fifty pounds realised from the sale and you thereby committed an offence punishable under section 371 of the Penal Code”.
The reasons for the application, stated in the form of a preamble to the application, are as follows:
“WHEREAS the above-named respondent is accused of criminal misappropriation and falsification of accounts;
AND WHEREAS applications have been previously made under the Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules and refused for failure to comply with the Rules but no proceedings have been taken under Chapter XVIII of the Criminal Procedure Code;
AND WHEREAS the alleged offences were committed in May, 1968, over five years ago and it is expedient in the interest of justice to dispose of the case speedily by summary trial in the High Court without first holding a preliminary inquiry under Chapter XVI of the Criminal Procedure Code;
AND WHEREAS the accused is an Inspector of Police and it is needful for him to be prosecuted by Counsel rather than a Police Officer in the High Court where issues can be properly tried;
AND WHEREAS the evidence shown in the proofs of evidence attached hereto will be evidence which will be available at the trial, and the case disclosed by proofs is to the best of my knowledge, information and belief a true case;”
The proofs of evidence referred to in the last preamble were duly attached to the application.
Although the application for such leave could be made ex-parte, the learned trial judge at the hearing on 9th November, 1973, and without assigning any reason, directed that the respondent should be put on notice and then adjourned it for hearing on 19th February, 1974.
At the resumed hearing, the learned trial judge, after hearing both parties, refused the application after referring to the provisions of section 185 of the Criminal Procedure Code and observing as follows:
“The relevant subsection is subsection (b) above. The law is very clear indeed and all the arguments before me seem to beat about the bush. The application can be made only if the charge on which the State would like to prosecute before the High Court is triable only by the High Court and what a lower court (Magistrate Court) could do on it would be the holding of a preliminary inquiry. That is to say, the High Court is being prayed by the State to dispense with the absence of a preliminary inquiry which the law requires to be performed under Chapter XVII of the C.P.C. and have a direct trial. In this case, the two offences of which the State would wish to prosecute the accused are triable in the Magistrate Court-one by a Magistrate of the third grade and the other by a Chief Magistrate. The Chief Magistrate could hear the two charges jointly and decide upon them. They are charges to be tried within the competent jurisdiction of the Chief Magistrate and the High Court could come in only by way of hearing appeal against the decision of the Chief Magistrate. This is not a proper matter to be brought to the High Court by way of application under section 185(b) C.P.C.
In passing, the Criminal Procedure (Applications for leave to prefer a charge in the High Court) Rules, 1970 has enumerated the conditions in rule 2 on which an application could be made to prefer a charge without P.1. Rule 3 is mainly procedural and the provisions of rule 3(2) do not contradict section 185(b) C.P.C. as it is necessary that the charge sought to be brought must be for offences on which P.1. is necessary.
It is the view of this court that an application of this nature should not be made by way of trial and error. Once it has been rejected by a High Court, it should not normally be brought before another judge. It would seem and will hardly connote another presumption, that one High Court is being asked to reverse the decision of another in the same subject matter affecting the same person.
Finally, a police officer in law is not different from another citizen when it comes to right to be tried. If a person elects to be tried summarily he should not constitutionally be deprived of that right.”
At the hearing of the appeal against this ruling the learned State Counsel who appeared for the applicant/appellant made a number of submissions which can be summarised as follows. The implication of the ruling is that certain categories of cases cannot be tried by the High Court although this could not be so in view of the provisions of section 12(1) of the Criminal Procedure Code. Learned counsel further argued that the interpretation given to the provisions of section 185 of the Code by the learned trial judge is erroneous in that it purports to restrict the High Court itself from trying certain categories of cases. Learned counsel then submitted that the learned trial judge was also in error in stating that the application can be made only if the charge on which the State would like to prosecute before the High Court is triable only by the High Court. Counsel also argued that the learned trial judge erred in his interpretation of the provisions of rules 2 and 3 of the Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules, 1970. In the face of all these errors, learned counsel finally submitted, the discretion which the learned trial judge undoubtedly has under section 185(b) of the Code when deciding whether to grant leave or not has not been judiciously exercised.
In reply, learned counsel for the respondent submitted that the interpretation placed on section 12 of the Criminal Procedure Code by learned counsel for the applicant/appellant could not be correct if the section is read together with section 185(b) of the said Code. It was further submitted that the discretion was properly exercised and that the reasons given by the learned trial judge for refusing to grant the leave asked for were amply supported by the law.
It is common ground that the learned trial judge has a discretion in the exercise of his power under section 185(b) of the Criminal Procedure Code (hereinafter referred to as the C.P.C.). However, as it will be necessary to refer to the section later, we reproduce its provisions hereunder:
“185. No person shall be tried by the High Court unless:
(a) he has been committed for trial to the High Court in accordance with the provisions of Chapter XVII; or
(b) a charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court;
(c) a charge of contempt is preferred against him in accordance with the provisions of section 314 or section 315.”
The questions which call for determination in this appeal are twofold. The first is whether this court, in the circumstances of this case, has the power to examine the manner in which the discretion which the learned trial judge undoubtedly has as to whether to grant the applicant/appellant leave or not, has been exercised; the other is whether or not we could decide whether the discretion has been judiciously or properly exercised.
It is well settled that a court of appeal will not interfere with the exercise of a discretion by a judge in the court below unless he has erred in principle or there is no material on which he could properly have arrived at his decision (see R. v. Cook (1959) 43 Cr. App. R. 138 as per Devlin, J., at p. 147). Referring to the above principle in a later decision in the case of R. v. Flynn (1961) 45 Cr. App. R. 268 which was heard by a full court of five judges, Slade, J., delivering the judgment of the court, observed at p. 277 as follows:
“This court is mindful of the remarks which I have already read of Devlin, J., as he then was, in delivering the judgment of five judges of the Court of Criminal Appeal in the case of Cook and, indeed, it is a truism to say that an appellate court is slow to interfere with the exercise of a discretion by a judge unless they feel satisfied either that he exercised it on wrong principles or that he failed to give weight to matters which he should have had in mind when exercising the discretion.”
In the present case, the learned trial judge has given reasons for refusing to grant leave to the applicant/appellant to prefer the two charges. In view of this settled principle of law to which we have referred, there is no doubt that this court has the power, and indeed the duty, to look at these reasons and to examine the manner in which the learned trial judge has exercised his discretion by refusing to grant leave to the applicant/appellant. In coming to this conclusion we are not unaware of the observation of this court in Jimoh Atanda v. Attorney-General, Western Nigeria (1965) N.M.L.R. 225 at p. 228. In that case, this court observed that although a judge has power under section 340(2)(b) of the Criminal Procedure Act (which is similar in effect, to section 185(b) of the C.P.C.) to consent to an information being preferred without a committal for trial, the power should be exercised with discretion, the more so as the exercise of the discretion will not be inquired into on appeal from conviction. That case is, however, distinguishable from the case in hand in that the observation is limited to cases where there has been appeal against a conviction in trial which followed the leave granted by the judge in the exercise of discretion. Moreover, that observation could not, and does not mean that an aggrieved applicant, as in the case in hand, who has been refused leave, after both sides have been heard, to prefer a charge under section 185(b) of the C.P.C., has lost his constitutional right of appeal under section 117(2)(b) of the Constitution of the Federation to appeal against the exercise of that discretion. .
We will now proceed to consider whether or not the discretion has been judiciously exercised. The learned trial judge gave three reasons for his refusal to grant leave to the applicant/appellant. Firstly, he observed that the application can be made only if the charge on which the State would like to prosecute before the High Court is triable only by the High Court. In this connection, he further stated that since the charges in respect of which the application is made are within the competence and jurisdiction of a Chief Magistrate, the Chief Magistrate could hear the two charges jointly and decide them. Secondly, he expressed the view that the application should not be made “by way of trial and error” and that once it has been rejected “by a High Court,” it should not normally be brought before another judge. Finally, the learned trial judge observed that if a person elects to be tried summarily he should not constitutionally be deprived of that right.
The first observation made by the learned trial judge that an application for leave can only be made in respect of a charge which is triable only by the High Court seems to us untenable in view of the provisions of section 12(1) which read:- ,
“12.(1) Subject to the other provisions of this Criminal Procedure Code, any offence under the Penal Code may be tried by any court by which such offence is shown in the sixth column of Appendix A to be triable or by any court other than a native court with greater powers.”
Although the section is made “subject to the other provisions of this Criminal Procedure Code,” we are not aware of any other provisions of the C.P.C., nor was our attention called to any, which excludes the High Court from trying certain offences under the Penal Code. On the contrary, section 12(1) provides that such offences may be tried by any court with greater powers than those presided over by a Magistrate Grade III in respect of an offence under section 309 of the Code or by a Chief Magistrate in respect of an offence under section 371 as shown in column 6 in Appendix ‘A’ of the said Code. The Explanatory Note 2 at the head of Appendix ‘A’ supports our view in this respect. The Note reads:
“2. By virtue of section 12 of the Criminal Procedure Code any offence may be tried by any court with greater powers than those of the court mentioned in column 6.”
Moreover, we are unable to discern anything in the clear and unambiguous provisions of section 185(b) of the C.P.C. to indicate that the charge referred to therein is one which can only be tried by a High Court Judge. Therefore, while it is correct that the two charges are within the competence and jurisdiction of a Chief Magistrate, this does not mean that the High Court lacks jurisdiction to try them.
The view expressed by the learned trial judge that once an application has been rejected “by a High Court”, it should not normally be brought before another judge is unnecessary partly because the reasons given for renewing the application before the learned trial judge have not been disputed and partly because the provisions of the Criminal Procedure (Applications for leave to prefer a charge in the High Court) Rules (B.P.S.L.N. 3 of 1970, hereinafter referred to as the Rules) postulates the possibility of bringing more than one application for such leave. The relevant rules are rules 1 (2), 2, 3(1) and 3(2) and they are as follows:
“1.(2) These rules shall govern applications to a judge of the High Court under paragraph (b) of section 185 of the Criminal Procedure Code for leave to prefer a charge against a person without the holding of a preliminary inquiry.
2.(1) An application may be made orally
(a) where the High Court sitting in its appellate jurisdiction has allowed an appeal in a criminal matter and has ordered a retrial of the person in the High Court; or
(b) when a magistrate purports to commit a person for trial in the High Court after taking a preliminary inquiry but the preliminary inquiry is declared by the High Court to be a nullity.
(2) The applicant in every such application shall state the charge in respect of which leave is sought.
3.(1) Every application, other than an application made under rule 2,
shall be in writing signed by the applicant or his counsel and
(a) shall be accompanied by the charge in respect of which leave is sought and, unless the application is made by or on behalf of the Attorney-General, shall also be accompanied by an affidavit by the applicant that the statements contained in the application are, to the best of the deponent’s knowledge, information and belief, true; and
(b) shall state whether or not any application has previously been made under these rules and whether or not any proceedings have been taken under Chapter XVII of the Criminal Procedure Code, and the result of any such applications or proceedings.
(2). Where no proceedings have been taken under Chapter XVII of the Criminal procedure Code the application shall state the reason why it is desired to prefer a charge without such proceedings having been taken, and
(a) there shall accompany the application proofs of the evidence of the witnesses whom it is proposed to call in support of the charge; and
(b) the application shall include a statement that the evidence shown in the proofs will be evidence which will be available at the trial and that the case disclosed by the proofs is, to the best of the knowledge, information and belief of the applicant, a true case.”
In the face of these provisions, we do not see the need for the learned trial judge to make heavy weather of the fact that the application has previously been rejected “by a High Court.” Moreover, it must be pointed out that since the discretion to grant leave is given by section 185(b) of the C.P.C., not to the High Court, but to “a judge of the High Court,” the application, if good cause is shown as in the case in hand, could be made to as many judges as possible and the merit of it should not be based on whether it has been made once before another judge. Different considerations might arise if the discretion provided for in section 185(b) has been given to the High Court instead of to a judge of that Court. Be that as it may, it is our view that the fact that the application is not the first, because of the reasons given by the applicant, is irrelevant to is consideration on the merits. There is one other point which merits our consideration. Clearly, rule 2 above which applies only to oral applications and to cases where a retrial is ordered by the High Court on appeal or where the High Court has declared a preliminary inquiry to be a nullity, is not applicable to the present case. The learned trial judge was therefore in error in implying that it did.
Finally, since the respondent has not been charged to court and has not elected to be tried summarily, the possibility of his being deprived of his constitutional right to be so tried does not arise and there is, therefore, no justification for the learned trial judge to advert to this at all.
Because of all the errors which we have spot-lighted above, it seems to us that the learned trial judge has failed to exercise his discretion judiciously. We also feel satisfied that he has exercised it on wrong principles and that he has failed to give adequate consideration to the reasons given by the applicant/appellant for making the application. It is manifest that the whole purpose of the provision for leave in section 185(b) of the C.P.C. and of the procedure to be followed as set out in the Rules is to see that the circumstances in which the prosecution (which includes a private prosecution) may prefer a charge against a person who has not been committed for trial should be clearly defined so that frivolous or vexatious charges should not be preferred in the High Court. It is pertinent, therefore, to emphasise the fact that the application for leave in the instant case is made by the acting Director of Public Prosecutions (Benue-Plateau State) acting on behalf of the Attorney-General of that State who is the State’s principal law officer.
For the reasons which we have set out above, we are constrained to hold that the order refusing the applicant/appellant leave to prefer the two charges in the Jos High Court is erroneous. The appeal therefore succeeds and it is allowed. The order of the learned trial judge made in the Jos High Court on 19th February, 1974, in which he refused the applicant/appellant leave to prefer the two charges against the respondent is set aside.
In considering the appropriate order to make in the circumstances, we think the observation of the Federal Supreme Court in The Queen v. Bello (1963) N.R.N.L.R. 35 at p. 37 is particularly apposite. It reads:
“As for the submission that the Judge cannot give himself leave to prefer a charge it is enough to say that the wording of section 185b) is designed to cover the case where one Judge gives leave for a charge to be preferred and the case is tried before another Judge (as in R. v. Rothfield 26 Cr. App. R. 103) as well as that where the same Judge gives leave and tries the case.”
We accordingly order as follows:
(1) that the applicant/appellant be and is hereby granted leave to prefer charges in the Jos High Court against the respondent in respect of offences under sections 309 and 371 of the Penal Code; and
(2) that the case be and is hereby remitted to the Jos High Court for hearing and determination by another Judge.
Other Citation: (1974) LCN/1927(SC)
