Muktar Yerima V Bornu N.A. (1968)

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LEWIS, J.S.C. 

On the 23rd of May, 1967 the Chief Alkali in the Maiduguri “A” Limited Native Court convicted the appellant of rape contrary to section 282(t)(e) of the Penal Code and sentenced him to a fine of £20. Section 283 lays down that (whoever commits) rape “shall be punished with imprisonment for life or for any less term and shall also be liable to fine.” On the 17th of August, 1967 an Inspector of Native Courts reported the case to the High Court giving as his reasons “sentence does not fit the crime as provided for in the Penal Code”, and he did so by virtue of the powers conferred on him by section 52(1) of the Native Courts Law (cap. 78 of the Laws of Northern Nigeria 1963) which reads-

“52 (1) Subject to the provisions of section 47, every inspector, if in his opinion, there has been a miscarriage of justice in any case before a native court to which he has access under the provisions of section 49, may of his own motion or in his absolute discretion on the application of any person concerned, report that case to the court to which an appeal in such case would lie”.

In JD/38CA/1967 the High Court sitting at Jos on the 16th of February, 1968 considered the report of the Inspector of Native Courts and heard counsel on behalf of the present appellant, who was allowed to raise the issue not only of sentence, which and been referred to the High Court, but also of the conviction generally, but overruled counsel’s objection that section 389 of the Criminal Procedure Code had not been complied with as the High Court held that notwithstanding the non-compliance with section 389 there had been no failure of justice, so that by virtue of section 382 of the Criminal Procedure Code the conviction should not be reversed. The High Court accordingly confirmed the conviction but substituted for the sentence of a fine of £20 that had been imposed a sentence of 4 years imprisonment with hard labour and 6 strokes of the cane.

Against that decision the appellant has brought this appeal to this court and Mr. Brown-Peterside on his behalf has argued a number of grounds of appeal. The first two grounds which he argued together raised a constitutional point and they were:-

“That the proceedings before the appellate court were a nullity, in that section 52 of the Native Courts Law, cap. 78 Laws of Northern Nigeria, under which the review was undertaken is repugnant to sections 22(8) 22(5)(b) and 22(2) of the Constitution of the Federation of Nigeria and therefore unconstitutional,” and “Section 52 of the Native Courts Law, cap 78 Laws of Northern Nigeria under which the review was undertaken also contravenes section 22(8) of the Constitution of the Federation of Nigeria, hence all proceedings held pursuant to that section (i.e. 52 of the Native Courts Law aforesaid) are also null and void and of no legal effect.”

In fact in his argument before us counsel did not refer to section 22(8) of the Constitution of the Federal Republic of Nigeria but rested his case on sections 22(2) and 22(5)(b) which read:-

“(2) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court.

(5) Every person who is charged with a criminal offence shall be entitled:-

(b) to be given adequate time and facilities for the preparation of his defence.,,

Mr. Brown-Peterside contended that as no time limit was laid down in section 52(1) of the Native Courts Law, unlike for instance section 28 of the former Native Courts Ordinance (cap. 142 of the Laws of Nigeria 1948) which prescribed a period of 6 months for the exercise of the powers of review therein provided, this power under the Native Courts Law could be exercised beyond the reasonable time laid down by section 22(2) of the Constitution. He further submitted that though the power had in this case been exercised within some 2 months and 25 days of the conviction it was nonetheless unreasonable as in his submission a reasonable time would be within 2 months, though he showed no authority or basis for this figure of 2 months other than that it would assist his client on this appeal.

Before however we have to determine what is a reasonable time within the meaning of section 22(2) of the Constitution it is first of all necessary for us to determine whether section 22(2) applies at all. Mr. Brown-Peterside submitted that the section should apply to appeals as a person is still being charged until the appeal is finally disposed of. We do not think that this is so as a person is charged only until he is convicted and it is the conviction that has to be appealed against and the appeal court has either to sustain or to allow the appeal against conviction. In any case however it seems clear to us that the wording of section 22(2) is dealing only with trials at first instance. Not only is a person not charged after his conviction at his trial but the words “unless the charge is withdrawn” can only apply to proceedings at the trial itself as no charges withdrawn after conviction. More-over the provisions of section 22(5) of the Constitution, which should be read in conjunction with section 22(2), read:-

“5. Every person who is charged with a criminal offence shall be entitled:-

(a) to be Informed promptly, in language that he understands and in detail, of the nature of the offence;