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Commissioner Of Police V. Walter Loeb (1940) LJR-WACA

Commissioner Of Police V. Walter Loeb (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Section 313 (1) (B) of the criminal procedure code considered-binding-over does not come under it-Appeal dismissed.

The following joint Judgment was delivered :-

KINGDON, C.J., NIGERIA, STROTHER-STEWART AND FUAD, J J.

In this case the appellant was charged in the Court of the District Magistrate, Nsawarn-

” For that he on the 6th day of July. 1939. at Nsawam and within the jurisdiction of the District Magistrate’s Court, did steal cash the sum of £130 (one hundred and thirty pounds) the property of Messrs. W. Bartholomew & Company, Limited, to which he had the means of access by reason of his employment as an Agent to the said CoMpany—Contrary to section 271 (1) of Cap. 9.”

He pleaded ” Not Guilty “, but the case resulted in a finding of ” Guilty “. He was then in the recorded words of the District Magistrate-

” Bound over in own recog recognizance in the sum of £10 to be of good behaviour and to appear for sentence if calmspon in a period of 12 months.”

The appellant appealed against this ” conviction (or order) ” to the Supreme Court and at the hearing his Counsel stated that he appealed under section 313 (b) of Cap. 10. The appeal was heard by Petrides, C.J., and dismissed. The appellant now appeals to this Court.

We are of opinion that no appeal lay from the Court of the District Magistrate to the Supreme Court in this case and that consequently no appeal lies to this Court. The relevant part of section 313 (1) of the Criminal Procedure Code (Cap. 10) reads as follows :-

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” 313 {1) Where a Magistrate’s Court makes a conviction or order ordering any of the following things, that is to say :—

” (a) Payment of a penalty not less than five pounds ;

  1. The doing or not doing of some act other than the payment of money or the entering into of recognizances to keep the peace without sureties, and that in case of default in the doing or not doing of such act the defendant be imprisoned and kept to hard labour ; or
  2. Imprisonment with or without hard labour ; or
  3. Corporal punishment,

” the party against whom the conviction or order is made may appeal to the Supreme Court against such decision.”

It has been submitted to us by Counsel for the appellant that in this section the words ” conviction or order ” must be read disjunctively and in this connection the provisions of section 34 of the Interpretation Ordinance (Cap. 1) which lay down that the word ” or ” shall be construed disjunctively unless a contrary intention appears, must not be overlooked. But in this section we think that a contrary intention does appear, for to read the words disjunctively would give an appeal against every conviction regardless of the sentence imposed and would make nonsense of the rest of the section.

We hold, therefore, that for an appeal to lie under the section against a conviction, the conviction must have been followed by an order ordering one of the four things set out in headings (a), (b), (c) and (d) of the section ; from the statement made by Counsel for the appellant in the Court below, it is clear that he thought an order coming under heading (b) had been made, but on comparing the order made with the requisites of heading (6) it is clear that the order does not come within that heading. It is patently not within any of the other three headings.

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It follows that, in our view, the section confers no right of appeal in the present case, and the appeal should have been dismissed in the Supreme Court for that reason, and it is now dismissed in this Court

We may however point out, before leaving the case, and without considering whether the finding of ” Guilty ” was or was not a proper one, that the order made upon the finding was not in accordance with the law. Section 78 (4) of the Criminal Code (Cap. 9) provides for ” binding over ” after a conviction, but makes it imperative that in exercising such power the Court shall specify a term of imprisonment in default. It is only under section 79 (1) (b) of the Criminal Code that an order similar to that made in the present case could be made, but that must be ” without proceeding to conviction “.

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