The State v. Samson Gali (1974)

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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.