Dr. S. A. Aluko V The Director Of Public Prosecutions Western Nigeria (1963) LLJR-SC

Dr. S. A. Aluko V The Director Of Public Prosecutions Western Nigeria (1963)

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BAIRAMIAN, JSC

The appellant and two others (who have not appealed) were convicted in the High Court of Western Nigeria (Adeyinka Morgan, J. on 21st February, 1963); of an offence against section 47 (1) (c) of the Criminal Code, cap. 28 in the 1959 Laws of the Region, which provides that:

“47.(1) Any person who:

(c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; shall be guilty of an offence and liable on conviction for a first offence to imprisonment for two years or to a fine of one hundred pounds or to both” etc.

Admittedly this was a first offence and non-indictable having regard to the punishment to which the appellant was liable for publishing a seditious libel; Ground 6 of the grounds of appeal objects that:

“The learned trial Judge erred in law in holding that he had jurisdiction to try the charge which was non-indictable.”

Mr. Ayoola for the appellant referred to the definition of “Summary conviction offence” in the Criminal Procedure Ordinance, which is as follows:

“Summary conviction offence’ means any offence punishable by a magistrate’s court on summary conviction, and includes any matter in respect of which a magistrate’s court can make an order in the exercise of its summary jurisdiction;”

and he argued that as the present offence was a summary conviction offence, it could not have been tried in the High Court; alternatively, that the High Court could not try a summary conviction offence unless it was joined with an indictable offence.

The argument is built on confusion between jurisdiction and procedure, and its foundation is a mere definition. What a definition is meant to do will be discussed later. The jurisdiction of a court is made up of the classes of cases which it can hear: procedure relates to the manner in which the jurisdiction is to be exercised.

For the jurisdiction of the High Court of Western Nigeria it is enough here to refer to sections 8 and 9 of its High Court Law, Cap. 44 of its Laws. Section 8 vests in the Court the jurisdiction and powers of the High Court of Justice in England in addition to any other jurisdiction conferred by this or any other Law or Ordinance”; and section 9 goes on to vest in the Court:

”all Her Majesty’s criminal jurisdiction. for the punishment of crimes and offences”.

That comprehends all offences without distinction between those which are triable summarily by a Magistrate without consent and those which are not.

In the exercise of its jurisdiction the Court is told by section 11 that it:

“Shall be exercised (so far as regards procedure and practice) in the manner provided by this Law, the Criminal Procedure Ordinance” etc.

The distinction between jurisdiction and procedure is patent; the Criminal Procedure Ordinance is intended to do no more than regulate the manner in which the criminal jurisdiction is to be exercised.

Briefly put, it is possible to present a case to the High Court either (a) after a preliminary investigation and committal by a magistrate, or (b) without any such committal.

Mr. Ayoola referred to R. v. Waziri (1958) N.R.L.R. 91, and to R. v. Onabaka (1959) W. R. N. L. R. 329; [1959] S. C. N. L. R. 656, as authorities for his argument that the High Court cannot try a non-indictable offence unless it is joined with an indictable offence.

In R. v. Waziri, Reed J. ruled that when a person was committed by a magistrate for trial, an information which had a solitary count for a non-indictable offence was bad in law and should be quashed. In R. v. Onubaka the Federal Supreme Court decided that where an information had a count for an indictable offence and a second count for an offence that was non-indictable, the second count was not bad in law. Neither case is in point, for here the appellant was not tried on information filed after committal; his case comes under group (b), for it was brought direct into the High Court without committal proceedings.

Mr. Ademola, the Director of Public Prosecutions for Western Nigeria, referred to section 77 of the Criminal Procedure Ordinance, which provides that:

“77. Subject to the provisions of any other Ordinance or any Law criminal proceedings may in accordance with the provisions of this Ordinance be instituted:

(a) in magistrates’ courts on a complaint whether or not on oath, and

(b) in the High Court:

(i). by information of the Attorney-General of a Region in accordance with the provisions of section 72, and

(ii). by information filed in the court after the accused has been summarily committed for perjury by a judge or magistrate under the provisions of Part XXXI, and

(iii). by information filed in the Court after the accused has been committed for trial by a magistrate under the provisions of Part XXXVI, and

(iv). on complaint whether on oath or not.”

He also referred to section 277, which states that –

°277. The provisions of this Part” (viz. Part XXXIII) “shall apply to offences triable summarily, that is to say:

(a) to all trials in the High Court other than on information, and

(b) to all trials in the High Court in respect of offences for. which it is provided that a trial can be had in the High Court otherwise than on information and for which no special procedure is provided, and

(c) to all trials in any magistrate’s court” etc.

The present case was begun by complaint by virtue of section 77 (b) (iv)

There is nothing either in section 77 or in section 277 to preclude the High Court from entertaining a complaint which relates solely to non-indictable offence. There is a provision in section 276 that:

“276. The Chief Justice may by rule direct that any offence or class of offence shall not be triable summarily by the High Court either throughout the whole of the Region or any specified part thereof.”

No rule has been made to bar a complaint of any particular kind, so it is open to the High Court to entertain any complaint invoking the exercise of its jurisdiction. Almost all criminal cases are prosecuted by public officers; they begin very few cases in the High Court, and the need for such a rule has not been felt.

Mr. Ayoola also referred to R. v. Kakelo, 17 Cr. App. R. 150, as an authority for his argument that a summary conviction offence cannot be tried in the High Court. What it decides is this: that in England when a new offence is created and is expressly made punishable on summary conviction, if there is nothing in the enactment which allows indictment, it is not possible to indict the offender. Section 47 of the Criminal Code does not provide that the offender shall be liable to punishment on summary conviction: it states merely that he shall be liable on conviction. We are not, however, to be understood as meaning that if a section in Western Nigeria provides that the offender is liable to punishment on summary conviction, he cannot be prosecuted in the High Court; that is left for consideration when the point arises

The argument in this appeal is based merely on the definition in the Criminal Procedure Ordinance of a summary conviction offence. In section 3 of the Interpretation Ordinance, cap. 89 of the 1958 Laws of the Federation etc., which relates to Definitions, there is this statement:

“Definitions’ when followed by terms defined means that those terms shall have the meanings assigned to them, unless there is anything in the subject or context repugnant to such meaning.”

Definitions in the Criminal Procedure Ordinance in particular should be read with care: some are inaccurate, e.g. that of complaint’. Whether in that Ordinance or elsewhere, a section of definitions is like a private dictionary for the Ordinance; the definitions are meant to be a kind of shorthand for the avoidance of repetition. If the definition of a term fits in when the term occurs in a section, the section must be read in its light; if it does not fit in, the section must be read as the context may require. We have not been referred to any section in which the expression ‘summary conviction offence’ occurs by way of help in understanding the section. All that has been done is to use that expression and its definition as the foundation for an argument that the High Court cannot try a non-indictable offence. It is using a definition as if it were a provision overriding substantive enactments on jurisdiction and procedure, which is foreign to its purpose. Ground 6 must fail.

That was a ground of law on which the appellant had a right of appeal. In addition to it, Mr. Ayoola sought leave to appeal on grounds relating to the facts of the case. The Court saw no substance in his argument on any of them, and refused leave to appeal; and there is no need to discuss any such grounds.

Other Citation: (1963) LCN/1022(SC)