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APPOLUS AKWUE
V.
COMMISSIONER OF POLICE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
5TH DAY OF MAY, 1952
2PLR/1952/32 (WACA)
OTHER CITATION(S)
2PLR/1952/32 (WACA)
(1952) XIV WACA PP. 70 – 72
LEX (1952) – XIV WACA 70 – 72
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, AG. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
APPOLUS AKWUE – Appellant
AND
COMMISSIONER OF POLICE – Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Jurisdiction of Magistrate, Grade III, in criminal cases — Offence punishable up to £200 fine or two years’ imprisonment or both, without the defendant’s consent — How properly treated
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PRACTICE AND PROCEDURE ISSUE(S)
COURT:- Magistrates’ Courts Ordinance, section 20 and 21 – Jurisdiction of Magistrate, Grade III, in criminal cases
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CASE SUMMARY
Sections 20 and 21 of the Magistrates’ Courts Ordinance read as follows:
“20. Subject to the provisions of this and of any other Ordinance, or Law, a magistrate of the first grade shall have full jurisdiction in criminal causes and power as hereinafter set forth:-
“(1) For the summary trial and determination of criminal cases as follows:-
“(a) where any person is charged with committing an offence or with doing any act or with omitting to do any act required by law, the commission or omission of which is in any case punishable either by fine not exceeding two hundred pounds or by imprisonment not exceeding two years or by both; power to impose the punishment specified by law;
(b) (i) where any person is charged with committing an offence or with doing any act or with omitting to do any act required by law, the commission or omission of which is stated by the enactment declaring such to be both an offence and to be one punishable or triable or liable to be dealt with on summary conviction or summarily or in a summary manner; power to award the maximum sentence of imprisonment and to order the payment of the maximum fine or penalty or forfeiture provided by such enactment or both such imprisonment and such fine or penalty forfeiture where by law both may be imposed;
“(ii) where any enactment provides that an order for the payment of money may be made on summary conviction or summarily or in a summary manner in respect of any act or omission; power to order the payment of the sum which may be ordered according to the provisions of the enactment providing for the making of the order;
“(c) where any person is charged with committing an offence or with doing any act or with omitting to do any act required by law, the commission or omission of which is an offence, not stated to be triable on summary conviction or summarily or in a summary manner and is stated by the enactment declaring such to be an offence that is punishable either by a fine exceeding two hundred pounds or by imprisonment exceeding two years or both, but taking into account the circumstances of the particular offence with which such person is charged and the character and antecedents of the accused himself the court is of opinion that the charge then before the court appears to be one of such a nature that, if proved, it would be adequately punished by any of the following punishments:-
“(i) imprisonment for not more than two years:
“(ii) a fine not exceeding two hundred pounds, such fine to be enforced in default of payment by distress or by imprisonment for not more than two years;
“(iii) in each of the above cases with or without whipping and any additional or alternative punishment in respect of offences for which such punishment may legally be inflicted;
“(iv) any lesser penalty or order which a magistrate in the exercise of his summary jurisdiction may impose or make, power to impose such punishment;
“Provided that the person so charged, if the magistrate decides to proceed in accordance with sub-section (1) (c) shall be informed by the magistrate before any evidence is taken of his right to be tried in the Supreme Court and such person consents to be tried by the magistrate:
“Provided further that if the magistrate shall not so inform the person charged the trial shall be null and void ab initio unless the person charged consents at any time before being called upon to make his defence to being tried by the magistrate, in which case the trial shall proceed as if the person charged had consented to being tried by the magistrate before the magistrate proceeded to hear evidence in the case.
“(2) To receive and inquire into all charges of indictable offences, and to make such orders in respect thereof as may be required by the provisions of any Ordinance or Law for the time being in force in relation to procedure in respect of indictable offences.
“21. Subject to the provisions of this and of any other Ordinance or Law the jurisdiction and powers of magistrates of the second and third grades in criminal causes shall be as follows:-
“(a) magistrates of the second grade: all those set out in section 20, save that the maximum fine of not exceeding two hundred pounds and the maximum period of imprisonment of not exceeding two years mentioned in that section shall be replaced by a sum of not exceeding one hundred pounds and a period of not exceeding one year and such limitation shall extend to any cause or matter whether or not the offence be one declared to be punishable or triable or liable to be dealt with on summary conviction or summarily or in a summary manner;
“(b) magistrates of the third grade: all those set out in paragraph (a) herein save that the maximum fine and the maximum period of imprisonment shall in no cause exceed a sum of twenty-five pounds or a period of three months’ imprisonment respectively.”
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
1. This was a Case Stated (W.A.C.A. No. 3782) and the effect of it is that a Magistrate, Grade III, can try an offence punishable up to £200 fine or two years’ imprisonment or both, without the defendant’s consent, but can only impose a fine up to £25 or imprisonment up to three months.
2. With the defendant’s consent, he can try an offence punishable with more than £200 or two years but, again, he can only impose up to £25 or up to three months at most.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
This is a case stated under the provisions of the proviso to section 31 of the Magistrates’ Courts (Appeals) Ordinance (Cap. 123).
1. The question upon which the opinion of this Court is sought is stated as follows:-
“Whether upon a proper construction of sections 20 and 21 of the Magistrates’ Courts Ordinance, the Magistrate, being a Magistrate of the third grade, should have informed the appellant of his right to be tried in the Supreme Court on the charges laid against him, being charges for which the maximum penalty is, for a first offence, a fine of fifty pounds, and for a second or subsequent offence a fine of fifty pounds or imprisonment for six months or both.”
2. The learned Judge making the reference states in paragraph 6 of the “case stated”:-
“The usual construction put upon section 21(b) of the Magistrates’ Courts Ordinance throughout the Northern Provinces, as far as my experience extends, is –
(1) that it gives to a Magistrate of the third grade unfettered jurisdiction to try cases for which the maximum penalties which can be imposed by law do not exceed two years’ imprisonment or two hundred pounds fine or both, but that a Magistrate of the third grade cannot himself, when trying cases in this class, impose a fine of more than twenty-five pounds or a period of imprisonment exceeding three months; and
(2) that a Magistrate of the third grade may, if a person charged with an offence punishable by law by more than two years’ imprisonment or more than two hundred pounds fine consents to being tried by him, try such person, but that in such case also he may not impose more than three months’ imprisonment or twenty-five pounds fine.”`
3. We agree with the construction placed upon section 21(b) of the Magistrates’ Courts Ordinance (Cap. 122), referred to in the immediately preceding paragraph hereof. It follows, therefore, that our answer to the question asked is in the negative.
Question answered on the case stated, in the negative.
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