Abu Bakare V Inspector General Of Police (1967)

ADEMOLA, C.J.N.

The appellant was charged before the Acting Chief Magistrate, Lagos on two counts, namely:-

1. Unlawful carnal knowledge contra section 357 Criminal Code and

2. Unlawful and indecent assault contra section 360 Criminal, Code.

The learned Chief Magistrate discharged him on the second count, about which more anon; on the First count he found that penetration was not proved and therefore convicted him of an attempt to commit the offence sentencing him to a term of 4 years I.H.L.

On appeal before the learned Chief Justice of the High Court, the learned Chief justice found that on the evidence before the learned Chief Magistrate it was clear that penetration was proved, and that the appellant should have been convicted of the full offence.

In the penultimate paragraph of his judgement, the learned Chief Justice said-

“By virtue of the powers vested in me under section 36 (2) ( C ) of the High Court of Lagos Act, and after hearing counsel for the appellant, I annul the conviction and convict the appellant of rape. The sentence will, however, stand.”

Now it is obvious that reference to section 36 of the High Court Act was clearly wrong as this section of the act deals mainly with the supervisory powers of a judge. Section 36 (1)empowers the chief Justice of the High Court of Lagos to request specified magistrates or all magistrates to forward to him or any other judge at the expiration of every calendar month, a list containing all criminal cases, or specified criminal cases decided by or brought before such magistrates.

Section 36 (2) reads

“Upon receipt of such list the judge may if he thinks fit call for a copy of the record of any case included therein, and, either without seeing such record or after seeing such record as he may determine, and either without hearing argument or after hearing argument as he may determine, may, in relation to the judgment, sentence or other order of the magistrate,

Annul the conviction and convict the accused of any offence of which he might have been convicted on the evidence, and sentence him accordingly: Provided however that any sentence so awarded shall not be greater than the sentence awarded by the magistrate. ‘

It is clear that the learned Chief Justice was not exercising his powers of revision here, and we assume that this reference to section 36 (2)(c) was really a mistake for section 40 of the High Court Act which deals with the power of the High Court in criminal appeals from magistrates. The provisions of section 40 of the High Court of Lagos Act with the relevant sub sections are as follows-

’40. On the conclusion of the hearing of an appeal from the Magistrates Court in a criminal case the High Court shall at the same or any subsequent sitting pronounce judgement on the appeal and in giving such judgement the court may

(a) On an appeal against a conviction, or against both conviction and sentence