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WILLIAM HAGAN AMANKRAH
V.
THE KING
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
17TH DAY OF NOVEMBER, 1951
2PLR/1951/15 (WACA)
OTHER CITATION(S)
2PLR/1951/15 (WACA)
(1951) XIII WACA PP. 282-284
LEX (1951) – XIII WACA 282-284
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
VERITY, C.J., NIGERIA
LEWEY, J.A.
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BETWEEN:
WILLIAM HAGAN AMANKRAH – Appellant
AND
THE KING – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. 3341/50.
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REPRESENTATION
Appellant in person
Riderhalgh, Acting Attorney-General, and Stephens, Crown Counsel — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Conviction for a criminal charge given by court divested of jurisdiction thereto at time of trial – Legal effect
CONSTITUTIONAL LAW:- Jurisdiction of Supreme Court to hear appeal from Magistrate’s Court for offences contra section 8 of Cap. 88 – Section 8 included in Part II of Cap. 88, and only applies to such parts of Nigeria as may be ordered by the Governor-in-Council – Validity of Notice made under section 5(2) of the Nigeria (Protectorate and Cameroons) Order-in-Council, 1946 – Distinction between regions and divisions – Whether Proclamation or notice required to divide a region.
PRACTICE AND PROCEDURE ISSUE(S)
INTERPRETATION OF STATUTE:- Change effected by Public Notice 126/1947, made under section 5 of the Nigeria (Protectorate and Cameroons) Order in Council, 1946 – Validity of section 5(2) of the Order
INTERPRETATION OF STATUTE:- Where in an enactment a word is used in a special sense – Where used in a different sense in subsidiary legislation – Legal effect
WORD AND PHRASES:- “Region” – Where used to describe a single Province paragraph 1 of Public Notice 126/1947 – Legal effect
CASE SUMMARY
This was an appeal from the Supreme Court, Abbott, J., having granted a certificate that the case was one fit for appeal as an important point of law was involved.
Appellant was convicted of offences contra section 8 of Cap. 88. Section 6 of this same Ordinance provides that section 8 shall only apply to such parts of Nigeria as the Governor-in-Council may order. The offence was committed in Port Harcourt, formerly in the Owerri Province, to which Part II has been applied. At the date of trial by Government Notice No 126/47, Port Harcourt had been transferred to the Rivers Province to which Part II does not apply.
Abbott, J, held that Government Notice 126/47 was invalid, the transfer having been effected by notice instead of by Proclamation, as required by section 5(2) of the Nigeria (Protectorate and Cameroons) Order-in-Council, 1946. He, accordingly, held that Port Harcourt was still within the Owerri Province and that he had jurisdiction to hear the appeal.
The Attorney-General did not support the conviction contending that a Proclamation was only necessary where boundaries of regions were varied, and that only a notice was required where a region was sub-divided. He asserted that Notice 126/47 effected a sub-division of a region and was therefore valid, and consequently, Port Harcourt was no longer in the Owerri Province but in the Rivers Province, to which Part II did not apply.
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. Upon a true construction of section 5(2) of the Nigeria (Protectorate and Cameroons) Order-in-Council it was clear that a Proclamation was only necessary where the boundaries of “regions” were varied.
2. In the case of subdivisions of a region a notice sufficed. Legal Notice 126/47 was valid. Port Harcourt was, therefore, in the Rivers Province to which Part II of Cap. 88 did not apply. Accordingly the conviction could not be sustained.
MAIN JUDGMENT
The following judgment was delivered:
BLACKALL, P.
This is an appeal from the decision of Abbott, upholding appellant’s conviction by the Magistrate at Port Harcourt.
The appellant, a letter writer, wrote a petition on behalf of a party who complained against an Inspector of Police, and was prosecuted on six charges of contravening the Illiterates Protection Ordinance (Cap. 88). He was convicted under section 8 on three counts, viz for not stating whether a fee was charged, for not stating the amount of fee, and for not stating the number of copies made. The second of these is of necessity included in the first, but the Magistrate imposed a fine of £5 on each count, thus punishing the appellant twice over for what was substantially the same offence.
Although the appellant appealed to the Supreme Court against sentence as well as conviction, this apparently escaped the attention of Abbott, J., who considered there were no merits in the appeal. He raised, however, a point of jurisdiction of considerable importance.
Section 8, under which the appellant was convicted, is included in Part II of Cap. 88 and section 6 provides that this Part shall apply only to such parts of Nigeria as may be ordered by the Governor in Council. Part II was applied to the former Owerri. Province at a time when Port Harcourt was within that Province, but the area covered by the former Provinces of Owerri and Calabar have since been divided into the three Provinces of Calabar, Owerri and Rivers, and Port Harcourt is now included in the latter. This change was effected by Public Notice 126/1947, made under section 5 of the Nigeria (Protectorate and Cameroons) Order in Council, 1946, and the question that falls to be determined is whether the Notice in question is valid. That in turn depend upon the interpretation of section 5 (2) of the Order, which reads as follows:-
“(2) The Governor may by Proclamation, define, and from time to time vary, the boundaries between any two of such regions, and further, may divide all or any of such regions for administrative and other purposes in such manner as he may consider expedient.”
Abbott, J was of opinion that the words “by Proclamation” govern everything that follows, and consequently that a Proclamation is required, not only where a regional boundary is to be defined or varied, but also where a region is divided. In his view, therefore, Notice 126/1947 was inoperative, as it was not a Proclamation, and since the Rivers Province was the creature of that Notice he held that it never came into being, and that the boundaries of Owerri Province remained as theretofore. As then Port Harcourt was in the former Owerri Province, and as Part II had been applied to that Province, the learned Judge held that the Magistrate had jurisdiction to try the offence. He therefore dismissed the appeal, but in view of the far-reaching consequences of his decision, he gave a certificate that the case was one tit for appeal to this Court, as an important point of law was involved.
The Acting Attorney-General appeared at the hearing of the appeal. He informed the Court that he was not in a position to support the conviction, since he was proposing to argue against the interpretation placed upon section 5 (2) of the Order by the Court below.
In considering section 5 (2), one should first ascertain the meaning of the words “such regions”. To do this we must look at the preceding sub-section which speaks of the “two regions to be known as the Western Provinces and Eastern Provinces thereof (i.e. of the Southern Provinces) respectively”, The word “region” is used in a special sense, viz to designate two groups of Provinces. The regions so defined play an important part in the Constitution granted by the Nigeria (Legislative Council) Order in Council, 1946.
Under that Order, regional Houses of Assembly were established for the Eastern and Western Provinces, and since any alteration in their boundaries would extend or curtail the jurisdiction of those bodies, it was only to be expected that any variation in them would be hedged around with formalities. And so it was, for in section 5 (2) as originally made, such a change required not only a Proclamation by the Governor, but also the approval of His Majesty signified through a Secretary of State. The latter requirement was revoked in 1948, but in order to ascertain the intention of the framers of the Order in Council, it is proper for the Court to look at the legislation as it stood at the date it was made. Now, acceptance of the learned Judge’s interpretation involves the presumption that it was intended that this august machinery should be invoked every time the smallest adjustment in the boundary of a Division were to be made. This would indeed be using a sledge-hammer to crack a nut, and as the Courts lean against a construction which would lead to inconvenience or absurdity, we would be reluctant to construe section 5 (2) in such a manner, unless the language was so clear and unequivocal as to admit of no other interpretation.
In the present case, the Attorney-General did not, however, consider it necessary to pray in aid this canon of construction. He contended that the sub-section in its ordinary grammatical sense means that the requirement of a Proclamation relates only to the definition or variation of regional boundaries, and, does not extend to the division or subdivision of regions. I would observe in passing that, where in an enactment a word is used in a special sense, it should not be used in a different sense in subsidiary legislation. But this was done in paragraph 1 of Public Notice 126/1947, which uses the word “region” to describe a single Province.
Reverting to the Attorney-General’s argument, he submitted that section 5 (2) makes provision for two distinct methods of altering boundaries. In elaborating his argument, he invited this Court to look at the sub-section as if it were split up into two paragraphs, (a) and (b). If his interpretation were adopted the sub-section would read as follows:-
“The Governor-
(a) may by Proclamation define, and from time to time vary, the boundaries between any two of such regions; and
(b) further may divide all or any of such regions for administrative and other purposes in such manner as he may consider expedient.”
If, on the other hand, Abbott, J.’s, construction were accepted the sub-section would read thus:-
“The Governor may by Proclamation-
(a) define and from time to time vary the boundaries between any two of such regions; and
(b) further, may divide all or any of such regions for administrative and-other purposes in such manner as he may consider expedient.”
The Attorney-General argued that the first of these is grammatically correct, while the other is not, for the words “further may” in the second draft are clearly otiose. This juxtaposition brings the two interpretations into bold relief, and this Court considers that the Attorney-General’s argument is well founded. The interpretation propounded by him is, in our view, not only grammatically correct, but also accords with the context of the Order in Council read as a whole. We hold, therefore, that Public Notice 126/1947 is valid and was effective in creating the Rivers Province. In consequence Port Harcourt is now in that Province and no longer in the Owerri Province, and since Part II of Cap. 88 has not been applied to the Rivers Province, it follows that the Magistrate had no jurisdiction to try charges under section 8. The appeal must, therefore, be allowed.
There is one other observation we would add. In his judgment Abbott, J., commented on the use of the word “Proclamation” in Government Notice 126/1947 and rightly remarked that this self-styled nomenclature could not tum the Notice into a Proclamation. As a matter of interest we asked the Attorney-General whether he could say how the word “Proclamation” came to be inserted in the Notice. He informed us that the instrument had been originally drafted as a Proclamation, but he had subsequently advised that a Notice was all that was required. The draftsman, through an oversight, however, omitted to alter the word “Proclamation” when revising the instrument.
Appeal allowed.
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