CHANVER ABA AND ANOTHER (APPELLANTS)
COMMISSIONER OF POLICE (RESPONDENT)
(1962) N.N.L.R. 37 (1961) All N.L.R. 580
Division: High Court (North)
Date of Judgment: 1st September, 1961
Case Number: Makurdi-Criminal Appeal No. JD/70CA/1961
Before: Smith, S.P. J.
Mccarthy, Ag. J.
Appeal from magistrate's court.
The appellants were charged before a magistrate with two offences, one of which the magistrate had no jurisdiction to determine summarily as it was an offence the maximum punishment for which was imprisonment for life. Both charges arose out of the same incident. The Magistrate, however, tried the accused on both charges, summarily, and convicted them on both.
On appeal, Counsel for the appellants contended that the trial was not void as regards the offence over which the magistrate had jurisdiction, but was void as regards to the other offence; and asked that that offence be struck out and that the appeal proceed on the valid charge.
Respondent's Counsel submitted that the whole trial was void by virtue of the N.R. Criminal Procedure Code, 1960, section 380.
(1) The magistrate's court, not being empowered by law to try the accused on the charge carrying a maximum sentence of life imprisonment, had no jurisdiction to try that charge summarily and, insofar as that charge was concerned, the proceedings were void.
(2) Under section 380(h) of the Criminal Procedure Code, 1960, a trial must be considered as a whole and where an accused is tried in one summary trial on two or more charges in a magistrate's court and the court is not empowered to try the accused on one of those charges the whole proceedings are void.
Appeal allowed: Retrial ordered.
Ordinances and Laws referred to:-
Criminal Code, Cap. 42, sections 70, 443.
N.R. Criminal Procedure Code, 1960, (No. 11 of 1960), sections 13(1), 13(2)(a), 13(2)(b), 380(h), 160(1).
APPEAL from magistrate's court.
Shatola for the Appellants.
Nasir, Senior Crown Counsel, for the Respondent.
Smith, S.P.J. (delivering the Judgment of the court):-The appellants, Chanver Aba and Atangeau Iju, were tried summarily in the magistrate's court and convicted of the offences of unlawful assembly and of unlawfully setting fire to a house contrary to section 70 and 443 respectively of the Criminal Code (Cap. 42). The offences were said to have been committed on 11th September, 1960. According to the First Information Report at page one of the record of proceedings the appellants were arrested on 28th October, 1960. The trial was conducted under Cap. XVI-Summary Trials in magistrate's courts-of Part VI of the Schedule to the Criminal Procedure Code Law, 1960, which came into force on 30th September, 1960. The charges were framed under the Criminal Code because that was the law creating these offences at the time they were said to have been committed.
Section 13(2)(a) of the Schedule to the Criminal Procedure Code Law, 1960, provides that a Chief Magistrate shall not try an offence punishable with imprisonment for a term which may exceed ten years or with a fine exceeding £500; and section 13(2)(b) similarly provides that a magistrate of the first grade shall not try an offence where the maximum punishment for the offence exceeds five years' imprisonment or a fine of £200. The maximum punishment for an offence contrary to section 443 of the Criminal Code is imprisonment for life. We therefore in this appeal raised the question of the jurisdiction of a magistrate's court to try the appellant summarily.
It was agreed by Counsel both for the appellants and the respondent that neither a Chief Magistrate nor a magistrate of the first grade is empowered to try summarily an offender for an offence contrary to section 443 of the Criminal Code. The Criminal Code is "any law other than the Penal Code" within section 13(1) of the Schedule to the Criminal Procedure Code Law, 1960. At the time the alleged offences were committed, 11th September, 1960, the Penal Code was not in force. The Criminal Code does not state what courts have jurisdiction to try the offences created by that Ordinance. The law giving magistrates' courts jurisdiction is the Criminal Procedure Code Law, 1960, and it is apparent from section 13 to which we have already referred that neither a Chief Magistrate nor a magistrate of the first or any other grade has jurisdiction to try summarily an offence for which the maximum punishment is imprisonment for life.
Mr Shatola for the appellants argued that the trial of the appellants in the magistrate's court was not void as regards the conviction under section 70 of the Criminal Code because the magistrate had jurisdiction to try an offender summarily for an offence under that section. Mr Shatola submitted that the charge framed by the magistrate under section 443 of the Criminal Code should be struck out and the conviction thereunder set aside; and that the hearing of the appeal should proceed on the basis of a valid conviction under section 70.
M. Nasir for the respondent submitted that the whole trial was void by virtue of section 380 of the Criminal Procedure Code, 1960.
In considering this problem we have looked at the First Information Report at page one of the record and find that a complaint was made to the police by Igwa Baka and two others that, on 11th September, 1960, the appellants with others unlawfully set fire to the compounds of the complainants. It was apparent from the First Information Report that the offence alleged was one contrary to section 443 of the Criminal Code. Had the learned magistrate appreciated the effect of section 13 of the Schedule to the Criminal Procedure Code Law, 1960, he would have realised on reading the First Information Report that the offence alleged therein was outside his powers of summary jurisdiction and was an offence which should be tried in the High Court. He would then have conducted a preliminary inquiry under Cap. XVII. That was the course he should have taken but in fact he conducted a summary trial. Section 380(h) of the Schedule to the Law of 1960 provides:-
If any court...not being empowered by law in this behalf, does any of the following things, namely:-
(h) tries an offender; such proceedings shall be void.
"Such proceedings" read in relation to paragraph (h) indicates that the trial must be considered as one whole. Where an offender is tried in one summary trial on two or more charges in a magistrate's court and it appears that the court was not empowered to try the offender on one of those charges then the whole proceedings are void. A magistrate has power under section 160(2) at any stage before signing Judgment in the trial of a case to convert a summary trial into a preliminary inquiry where the case is one which ought to be tried by the High Court and that is what the magistrate should have done in the present case when he framed the charges if he had not realised earlier from the First Information Report that this was a case where he should have conducted a preliminary inquiry.
For the reasons we have given we declare the trial of the appellants in the magistrate's court to be void and we order a retrial in the High Court following a preliminary inquiry before another magistrate.
Appeal allowed. Retrial ordered.