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PETER OBIYOMI
V.
E. A. JOLOKO
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
12TH DAY OF NOVEMBER, 1954
APPEAL NO. 116/1954
2PLR/1954/80 (WACA)
OTHER CITATION(S)
2PLR/1954/80 (WACA)
(1954) XIV WACA PP. 621-623
LEX (1954) – XIV WACA 621-623
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, Ag. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
PETER OBIYOMI – Appellant
AND
E. A. JOLOKO – Respondent
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ORIGINATING COURT(S)
Appeal by the prosecutor from the decision of the Supreme Court on appeal from a Magistrate
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REPRESENTATION
S. O. Akinhugbe — for Appellant
Respondent not represented by counsel
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Criminal Procedure Ordinance, sections 2 and 63: “summary conviction offence” — Perjury a felony under section 118 of the Criminal Code — Private prosecution for perjury — Defendant consenting to summary trial — Whether time limit of six months applies.
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CASE SUMMARY
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 “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:-
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. 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.
2. 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.
Case cited:-
(1) Rex v. Fussell (1951), 2 All E.R. 761, at 762.
(Editor’s Note: On an “indictable offence” see Rex v. Eze, 19 N.L.R. 101.)
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MAIN JUDGMENT
The following judgment was delivered:
COUSSEY, J. A.
This case came before the Magistrate’s Court of the Ife Magisterial District on the 5th November, 1953. The defendant was charged with perjury on the 5th January, 1952, under section 118 of the Criminal Code. The complaint, which was made by a person not in an official capacity, was not made within six months from the time when the matter of complaint arose.
The Magistrate’s Court assumed jurisdiction pursuant to the provisions of section 20 (1) (c) of the Magistrates’ Courts Ordinance (Cap. 122). In accordance with the proviso to that section the accused consented to be tried by the Magistrate’s Court, i.e. summarily.
Applying section 63 of the Criminal Procedure Ordinance which he held applied in this case, the learned Magistrate ruled that the complaint was lodged out of time and, on this ground, he dismissed the charge.
This ruling was upheld by the Supreme Court, Benin Judicial Division, on an appeal by the prosecutor who contended, as he contends in this Court, that the Magistrate was wrong in law in holding that the offence of perjury is a summary conviction offence within the meaning of section 63 of the Criminal Procedure Ordinance so that the time limit therein provided would operate. Section 63 provides:-
“In every case where no time is specially limited for making a complaint for a summary conviction offence in the Ordinance relating to such offence, such complaint if made other than by a person in his official capacity shall be made within six months from the time when the matter of such complaint arose, and not after.”
In deciding whether a charge of perjury under section 118 of the Criminal Code is a summary conviction offence the Courts below turned to section 2 of the Criminal Procedure Ordinance which defines a summary conviction offence as:-
“Any offence punishable by a Magistrate’s Court on summary conviction, and includes any matter in respect of which a Magistrate’s Court can make an order in the exercise of its summary jurisdiction.”
and held that when an accused person elects to be tried summarily and the Magistrate exercises his extended jurisdiction he is dealing with a summary conviction offence.
In our opinion this view of the matter is incorrect and the appeal of the prosecutor must succeed. The contention of the respondent involves the proposition that an indictable offence may be converted into a summary offence at the election of the accused if he consents to stand his trial summarily. Obviously a time limit of six months is intended to prevent stale private prosecutions for petty offences.
The offence of perjury is not stated by the Criminal Code to be triable summarily. It is a felony declared by section 118 of the Code to be punishable with a maximum of fourteen years’ imprisonment. The Magistrate’s Court assumes jurisdiction under section 20 (1) (c) only if, in its discretion, it considers that the charge, if proved, would be adequately punished by imprisonment for not more than two years or fine not exceeding £200 or in default two years’ imprisonment, and then only with the consent of the accused.
The definition of a summary conviction offence in section 2 of the Criminal Procedure Ordinance affords no difficulty. It means an offence which is triable and punishable by a Magistrate’s Court in its undoubted vested jurisdiction but does not include an offence triable only with the consent of the accused.
An indictable offence is an offence triable on information whether or not under the express provisions of section 304 (1) of the Criminal Procedure Ordinance and the complementary section 20 (1) (c) of the Magistrates’ Ordinance, it is also triable by a Magistrate’s Court (in its extended jurisdiction) with the consent of the accused; in which latter case, however, the punishment must be within the limit of a Magistrate’s Court’s power in contrast to the punishment on trial on information.
It follows that an indictable offence does not alter its character by its being tried by a Magistrate under section 20 (1) (c), that section 63 of the Criminal Procedure Ordinance is not applicable to this case and that a Magistrate’s Court, without limitation of time, may try summarily an indictable offence in the circumstances provided by section 20 (1) (c).
The question is put beyond doubt in Rex v. Fussell (1) where Lord Goddard, C.J., says:-
“Hastings & Folkestone Glassworks Ltd. v. Kalson, 1948, 2 All E.R. 1013; (1949) 1 K.B. 214, lays down in the clearest possible terms that if an offence is one which by statute can be tried either summarily or on indictment, it is for all purposes an indictable offence.”
The appeal is accordingly allowed, the ruling of the learned Magistrate is set aside and it is ordered that the trial do proceed.
Appeal allowed; the trial to proceed.