James Edun And Others V Inspector-General Of Police (1966)

LawGlobal-Hub Lead Judgment Report

BRETT J.S.C.

The appellants were convicted by the Chief Magistrate, Warri, on a charge containing two counts. Their appeals to the High Court were dismissed and they have now appealed to this Court.

The material parts of the charge originally read-

‘1st Count:-That you took without lawful authority 3 ballot boxes which were in the possession of one Henry Edema which ballot boxes were to be used in the Mid-West Region election and thereby committed an offence contrary to section 59 (1) (g) of the Western Nigeria Parliamentary Electoral Regulations, 1960.

2nd Count: That you stole from Henry Edema’ (a number of named articles) ‘and immediately before the time of such stealing did threaten to use actual violence to the said Henry Edema and thereby committed an offence contrary to section 341 of the Criminal Code and punishable under section 342 of the same law.’

The record of the proceedings on the 19th October, 1964 reads-

‘Charges read to the 13 accused persons and each elects summary trial and plead: Not Guilty to both counts. Bail £200 and 1 surety each. Inspector Amu for Police. Each accused in person. Adjourned 23-10-64 for hearing at the instance of accused persons.’

When the case was resumed on the 23rd October the accused were represented by counsel, who immediately took objection to the wording of holding that it did not. That does not conclude the matter, since section 21(1) (a) of the Magistrates’ Courts Law in force in Mid-Western Nigeria appears to give a Chief Magistrate power to deal summarily with an offence for which the maximum penalty does not exceed a fine of E500 or imprisonment for five years without giving the accused person the option of being tried in the High Court, notwithstanding section 304 of the Criminal Procedure Act. When section 21 (1) (a) of the Magistrates’ Court Law was brought to the attention of Mr. Boyo, who appeared for the appellants, he did not argue the question, but pointed out that the section would not apply to the count for robbery with violence and submitted that on the amendment of the first count the Chief Magistrate ought to have asked the accused persons again whether they elected summary trial on the second count.

For this submission Mr. Boyo relied on the decision of the West African Court of Appeal in R.v.Ijoma (1947) 12 W.A.C.A. 220, where the Court said “We have no doubt, however, that where the word ‘charge’ is used in section 162 and 163 of t he present Ordinance it refers to the document whereupon the accused is charged and includes, therefore, a document which may contain more than one statement of an offence.”This appears to be first case in which this point has been taken. In Jones v. Police (1960) 5 F.S.C.38,which is the authority for saying that on the amendment of a charge alleging an indictable offence the accused must be given a fresh opportunity of electing summary trial, there was only one count in the charge. As the West African Court of Appeal pointed out in R.v.Ijoma,the Criminal Procedure Act uses the word “charge” in a way which may prove misleading, and in some sections of the act such as section 156 the word can only mean an accusation or count. We do not doubt the correctness of the decision in R.v.Ijoma, but in view of the different meanings which the word “charge” bears in different sections of the Act a decision on one section cannot be conclusive on the meaning to be given to the word in another section.

Section 304 (2) lays down the procedure to be followed “If a magistrate at any time during the hearing of a charge for such an indictable offence becomes satisfied that it is expedient to deal with the case summarily’, and requires that he shall, among other things, cause the charge to be reduced,” In this context it is impossible to regard the word “charge “as meaning a document, and in our view for the section was sufficiently complied with in this case. The reason given for the decision in Jones v. Police was that “it may be that other matters have been introduced into the amended charge for which the accused would prefer to be tried by a judge, his consent to being tried summarily not having gone any further the first count as not diclosing an offence. Prosecution applied to amend it by deleting the words “were to be used” and substituting the words “then in use”, which brought it into conformity with the wording of the regulation, and the record goes on-

“Amendment granted. Amended charge read to accused persons and they plead not guilty.”

The trial then proceeded in the ordinary way.

The first three grounds of appeal argued complain that the Chief magistrate failed to comply with sections 164 and 304 of the Criminal Procedure Act after amending the first count. It is said that there were three irregularities; (a) that the record fails to show that each of the accused persons was called on to plead separately to the amended charge; (b) that the Chief magistrate omitted to ask the accused persons if they were ready to be tried on the amended charge; and 9c) that the Chief Magistrate omitted to ask the accused persons if they elected to be tried summarily on the amended charge. The first two of these submissions relate to section 164, and the third to section 304.

We do not regard the first submission as well founded. It would have been better if the chief Magistrate had written “each pleads not guilty” instead of “they plead not guilty”, but they were represented by counsel who took no objection to the course adopted, and asno attempt has been made to supplement the record by any further evidence of what took place we think it may safely be assumed that the correct procedure was followed.