Ejoh .v. I.G.P (1963) LLJR-SC

Ejoh .v. I.G.P (1963)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, F.J.

This is a Case Stated for the opinion of the Court by Onyeama, J. in the criminal appeal No. 63 CNI962 of the Lagos High Court. The learned Judge states that the appellant was charged with an offence under section 125A (1) of the Criminal Code, which provides for a term of twelve months but does not declare that the offence is punishable upon summary conviction; that he was tried and convicted by a magistrate, grade I, who did not obtain his consent for summary trial; that he, the judge, was of the opinion that:-

“Any offence not stated to be punishable on summary conviction or which fell within either of paragraphs (a) and (b) of the definition of an “indictable offence” in the Criminal Procedure Ordinance was an indictable offence and adjourned a decision on the point ;”

and that the questions of law for the opinion of the Federal Supreme Court are:

“1. Whether I formed a correct opinion in my interpretation of the definition of “Indictable offence” in section 2 of the Criminal Procedure Ordinance;

2. And whether the offence set out in section 125A (1) is an indictable offence. ”

They are questions of importance.
That Ordinance came into force on the 1st June, 1945, on which date the courts system was re-organised by two other Ordinances- the Supreme Court Ordinance, and the Magistrates’ Courts Ordinance, Cap. 211 and Cap. 122, in the Laws of Nigeria, 1948. The former Supreme Court was replaced in 1955 by the High Courts of Lagos and of each Region and the former Magistrates’ Courts were replaced by those of Lagos and of each Region. The Criminal Procedure Ordinance continued in force in the Northern Region until it was replaced by its own Criminal Procedure Code at the end of September, 1960, and still continues in force else where in Nigeria. It will be convenient to begin looking at the questions of law raised through the eyes of a magistrate, grade I, taking up duty in June, 1945.

There were also magistrates of the 2nd and of the 3rd grade; section 21 of the Magistrates’ Courts Ordinance enabled them to try the same offences as a magistrate of the 1st grade could under section 20, but with lower powers of punishment. Section 20 is very long, so it will be summarised. It confers jurisdiction for the summary trial of criminal cases:-

(a) Where the offence is punishable either by fine not exceeding two hundred pounds or by imprisonment not exceeding two years or by both;
(b) (i) where the enactment creating the offence declares it to be punishable on summary conviction, in which case the magistrate may impose the penalty provided, whether imprisonment, fine, or forfeiture, or all of them;

(ii) Where the enactment provides that an order may be made for payment of money on summary conviction in respect of an act or omission;

(c) with the consent of the accused person, where the offence is “not stated to be tri able on summary conviction and is stated by the enactment declaring such to be an offence that is punishable either by a fine exceeding two hundred pounds or by imprisonment exceeding two years or both”.

The Court underlines the “and” in the  quoted from section 20 (1) (c), to draw attention to its importance in the description of the offences which require the consent of the accused person for summary trial. Section 20 goes on in subsection (2) to confer Jurisdiction:-
“to receive and inquire into all charges of indictable offences, and to make such orders in respect thereof as may be required by the provisions of any Ordinance for the time being in force in relation to procedure in respect of indictable offences”.

The other relevant section is No. 52, which provides that” The practice and procedure of the court:-
(b) In its criminal jurisdiction shall be regulated, in respect of summary conviction offences and in respect of indictable offences, by any Ordinance relating there to. ”
There is no definition of “summary conviction offence” or of “indictable offence” in that Ordinance, but there is this enlightening proviso in section 20 (1) (c)::-

“Provided that the person so charged, if the magistrate decides to proceed in accordance with subsection (1) (c), shall be informed by the magistrate before any evidence is taken of his right to be tried in the Supreme Court and such person consents to be tried by the magistrate” etc.

Upon those provisions a magistrate taking up duty in June, 1945, would infer that he had jurisdiction to try summarily, without consent, offences falling within (a) or (b) of section 20 (1), which made up the “summary conviction offences” spoken of in section 52, and that the “indictable offences” were the other offences described in (c) of section 20 (1), which he could try by consent if he thought his powers of punishment would be adequate; other wise the accused person would have to be tried in the Supreme Court, and the magistrate would have to inquire into the indictable offence and make an order of committal.

The magistrate would next look at the Criminal Procedure Ordinance, which takes up pages 221 to 389 in the 1948 Laws. He would find a variety of provisions before arriving at section 277, which begins Part 33 on “Summary Trial”, and which states that:-

“The provisions of this Part shall apply to offences try able summarily, that is to say::-
(a) To all trials in the Supreme Court other than on information, and

(b) [which also relates to trials in the Supreme Court], and

(c) To all trials in any magistrate’s court to the extent of the jurisdiction
of the magistrate adjudicating, and
(d) For all offences declared by any written law to be try able summarily
or on summary conviction or in a summary manner or by a magistrate.”
Portions (c) and (d) plainly enough refer to the summary jurisdiction, exercisable without consent, in section 20 (1)(a) and (b) of the Magistrates’ Courts Ordinance. Lower on in the Criminal Procedure Ordinance there is Part 35 on “Summary Trial by Magistrate of Adult charged with an Indictable offence”, which has these illuminating provisions in section 304:-

“(3) If the magistrate shall not inform the accused of his right to be tried by a judge of the Supreme Court or with a jury, as the case may be, the trial shall be null and void ab initio unless the accused consents at any time before being called upon to make his defence to be tried summarily by a magistrate in which case the trial shall proceed as if the accused had consented to being tried summarily by a magistrate before the magistrate proceeded to hear evidence in the case.

(4) Any written law in force at the commencement of this Ordinance which relates to the summary trial by a magistrate of indictable offences or which refers to indictable offences which are try able summarily by a magistrate shall, subject to the provisions of this section, be construed, as the case may be, as applying to summary trial by a magistrate of indictable offences under this section or as referring to all indictable offences which are tr able summarily by a magistrate there under.”
The written law referred to at the beginning of subsection (4) is plainly section 20 (1) (c) of the Magistrates’ Courts Ordinance, which came into force on the same day as the Criminal Procedure Ordinance ; that section 20 (1) (c) does not speak of indictable offences, but section 304 of the Procedure Ordinance makes it clear that they are the offences which fall within the said section 20 (1) (c) and require the consent of the accused person for summary trial. There is also section 308 of the Criminal Procedure Ordinance, which provides that:-

“Where an indictable offence is in the circumstances mentioned in this Part authorised to be dealt with summarily by a magistrate:-
(a) the procedure shall, until the court assumes the power to deal with the offence summarily, be the same in all respects as if the offence were to be dealt with throughout as an indictable offence, but when and so soon as the court assumes the power to deal with such offence summarily, the procedure shall be the same from and after that period as if the offence were a summary conviction offence and not an indictable offence, and the other provisions of this Ordinance shall apply accordingly:
Provided that nothing herein contained shall be construed to prevent the court from dealing thereafter with the offence as an indictable offence, if it thinks fit so to do.”

That proviso takes one back to section 298, which states:-

“If, in the course of the hearing, circumstances should appear which cause the court to be of the opinion that the offence, on account of its aggravated character or other sufficient reason, is not suitable to be disposed of by such court, then such court may, instead of adjudicating, commit the accused for trial before the Supreme Court and shall follow the procedure in Part 36 in relation to preliminary inquiries.”

Section 298 is in Part 33 on Summary Trial. Section 308, which speaks of a summary conviction offence, means thereby an offence try able summarily by a magistrate, viz, according to section 277 (c) and (d) which, as above explained, refer to section 20 (1) (a) and (b) of the Magistrates’ Courts Ordinance. The words “indictable offence” are used in section 308 as meaning an offence which is not a summary conviction offence ; indictable offence in section 308 means the same as indictable offence in section 304 of the Criminal Procedure Ordinance, that is to sayan offence which falls within section 20 (1) (c) of the Magistrates’ Courts Ordinance. Thus the meaning of indictable offence and of summary conviction offence are ascertained by an exposition ex visceribus actus. Lord Coke is quoted in Craies on Statute Law (5th ed., 1952, at page 93) as having said::-

“It is the most natural and genuine exposition of a statute to construe one part of a statute by another part of the same statute, for that best expresseth the meaning of the makers and this exposition is ex visceribus actus.” (From 1 Inst.381b).

As the meaning of indictable offence and of summary conviction offence was plain from the provisions of the Criminal Procedure Ordinance itself and those of the Magistrates’ Courts Ordinance, to which they were wedded, the definitions of those expressions in section 2 of the Criminal Procedure Ordinance were both superfluous and could give rise to argument. Fortunately it is a canon of construction that a definition does not apply where the con otherwise requires or where it is repugnant to the con (Craies, p. 95, and p.
197); and that canon is embodied in the definition of “definitions” (the introductory word in the Criminal Procedure Ordinance, section 2) in the Interpretation Act, section 3, which provides that:-

“‘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 con repugnant to such meaning.”
According to section 2 of the Criminal Procedure Ordinance:-
“Indictable offence’ means any offence:-
(a) Which on conviction may be punished by a term of imprisonment exceeding two years, or
(b) Which on conviction may be punished by imposition of a fine exceeding two hundred pounds, or
(c) Which is not declared by the written law creating the offence to be punishable on summary conviction.”
Section 2 has also this other definition:-.

‘” 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.”

That in June, 1945, meant the summary jurisdiction without consent vested in the magistrate’s court by section 20 (1) (a) and (b) of the Magistrates’ Courts Ordinance, and was framed with an eye to those provisions. That those provisions were in the drafts man’s mind is manifest from the wording of the definition of “indictable offence”, which, read with the other definition, must mean any offence which is not a summary conviction offence.

There was no trouble between 1945 and 1950. In 1950 the point was taken in R. v. Eze, 19 N.L.R., 110 that in view of the “or” between (b) and (c) of the definition of indictable offence, any offence was indictable if the law creating it did not declare it to be punishable on summary conviction. Hallinan, J. held that the “or” should be read as “and”; in his view, it was obvious that the legislature intended the definition to include nothing except what lay beyond the jurisdiction of a magistrate grade I as set out in section 20 (1) (a) and (b) of the Magistrates Courts Ordinance.

That Ordinance, he pointed out, came into force on the same day as the Criminal Procedure Ordinance, and both formed part of a revised system of judicature; furthermore, he could not believe that the legislature had intended to enable the majority of petty offenders to insist on trial in the Supreme Court. The learned Judge cited this passage from Maxwell on the Interpretation of Statutes, 9th ed. at p. 244:-
“to cal1)’ out the intention of the legislature, it is occasionally found necessary to read the conjunctions ‘or’ and ‘and’ one for the other.”

The meaning of “summary conviction offence” came up for consideration in Obiyomi v. Joloko, (1954) 14 W.A.C.A. 621 to which Mr Nonyelu referred. There Coussey, J.A. delivering the judgement of the Court, said this (at p. 622):-

“The definition of a summary conviction offence in section 2 of the Criminal Procedure Ordinance affords no difficulty. It means an offence which is try able and punishable by a Magistrate’s Court in its undoubted vested jurisdiction but does not include an offence try able only with the consent of the accused.

An indictable offence is an offence try able on information whether or not under the express provisions of section 304 (1) of the Criminal Procedure Ordinance and the complementary section 20 (1) (c) of the Magistrates’ Ordinance, it is also try able by a Magistrate’s Court (in its extended jurisdiction) with the consent of the accused; in which latter case, however, the punishment must be within the limit of a Magistrate’s Court’s power – in contrast to the punishment on trial on information.”
R. v. Eze was not cited: the learned Judges of appeal arrived at a similar view as Hallinan, J., independently. Indictable offences are those described in section 20 (1) (c) of the Magistrates’ Courts Ordinance. The judgment in Obiyomi v. Joloko implies that in the definition of “indictable offence”, the “or” between portions (b) and (c) was a mistake for “and”.

The point came up again before Hughes, J. in Onyemachi v. Okeugo and others, 1958, Law Reports of the Eastern Region, vol. II, p. 29. He took the view rejected in R. v. Eze; neither that case nor Obiyomi v. Joloko was drawn to the attention of the learned Judge. R. v. Eze is mentioned in the Case stated; Obiyomi v. Joloko was not drawn to the attention of Onyeama, J.
There is no need to mention the other cases referred to at the hearing of the Case Stated, for the point in hand was not discussed in them.

There are two matters in the Case Stated which need consideration. Onyeama, J. points out that section 250 of the Criminal Code provides that an offender against its provisions “is liable on summary conviction for the first offence to imprisonment for three months, and for every subsequent offence to imprisonment for one year”; the legislature, as he puts it, “were mindful of the words of paragraph (c) in the definition of indictable offences”. There are reasons for thinking otherwise.

Under section 249, if a person is caught gambling in the street, he is liable to imprisonment for a month, but the section does not say “on summary conviction “; which would entitle him, on the learned Judge’s new, to trial in the High Court; but if he is caught a second time and charged under section 250 (1), which has the words “on summary conviction”, he is try able by a magistrate summarily; and if he is caught a third time, he is try able summarily again: the punishment under section 250 is three months for the second time and twelve for any subsequent offence. The fact is that the jurisdiction of the Magistrates was not framed with an eye to the classification of offences in section 3 of the Criminal Code-felonies when so declared or when the offence is punishable with three years or more; misdemeanors when so declared or when punishable with six months up to less than three years; and simple offences, viz. offences which are not felonies or misdemeanors.

The other matter arises from this observation in the Case Stated:

“There is a marked difference between the language of section 20 of cap. 122 (1948 Laws of Nigeria) and the language of section 15 of the Magistrates’ Courts (Lagos) Ordinance Section 15 (2) (of the latter)
only confers ‘jurisdiction for the summary trial of offences other than indictable offences’ and section 2 (1) (enacts) that ‘indictable offence’ has the meaning assigned to that term by the Criminal Procedure Ordinance.”

That implies that the reasoning in R. v. Eze no longer applies, that there is no need to read the “or” as anything other than an ordinary disjunctive “or”, and that the definition should be applied literally; which means that in 1955 the legislature decided to reduce the summary jurisdiction of magistrates drastically.

The Court is of opinion that there was no such intention, but that when drafting the new section 15, the draftsman did what is sometimes done, viz. he used the words “indictable offence”, which had been interpreted authoritatively by the courts, to avoid repeating the rather long provisions of the old section 20.

At the hearing of argument on the Case Stated, Mr. Makanju, who supported the view advocated in it, was constrained to admit that on that view portions (a) and (b) of the definition of “indictable offence” in section 2 of the Criminal Procedure Ordinance were superfluous and should be treated as surplus age. That betrays the flaw in the argument: for the legislature is not deemed to waste its words or say anything in vain: Halsbury’s Laws, 3rd ed. vol. 36, para. 583. There is, also, the cardinal flaw of taking the definition in isolation, instead of interpreting it in the light of the other provisions bearing on its interpretation.

The Court is of the opinion that that definition, in which the second “or” was a mere mistake for “and”, could not have the effect of depriving by a side-wind and was never intended to deprive the magistrates of any part of the summary criminal jurisdiction without consent expressly conferred on them by section 20 (1) (a) and (b) of the Magistrates’ Courts Ordinance; that section 15 of the Magistrates’ Courts (Lagos) Ordinance of 1955 was not intended to affect the true meaning of “Indictable offence” and reduce the magistrates’ jurisdiction to a shadow of its former extent; and that the answer to each of the two questions put in the Case Stated is in the negative.

Other Citation: (1963) LCN/1049(SC)