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Otumfuo Nana Osei Agyeman Prempeh II V. Agyeman & Ors (1936) LJR-WACA

Otumfuo Nana Osei Agyeman Prempeh II V. Agyeman & Ors (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Conspiracy, etc., against Native Authority contra Section 12 (1) of the Native Authority Ordinance, 1935, of Ashanti (No. I of 1935)—Summary trial of charges, after preliminary objection to jurisdiction overruled, results in convictions.

Held : Trial Judge had no jurisdiction to try these charges summarily. Appeal allowed and judgment and verdict of acquittal entered.

There is no necessity to set out the facts of this case. Frans Dove (with him K. A. Bosstnan) for the Appellants.

K.A.Korsah (with him E. 0. Asafu-Adjaye) for the Respondent. The following judgment was delivered :-

KINGDON, C. J., NIGERIA.

In this case the appellants were brought before a Judge of the Supreme Court at Kumasi upon a summons, and their case was dealt with summarily by the Judge after he had considered and overruled an objection to his jurisdiction taken on their behalf. They were each charged with two offences contrary to section 12 (1) of the Native Authority Ordinance, 1935, of Ashanti (No. 1 of 1935) ; they were all convicted of both offences and were sentenced, the first three to imprisonment with hard labour for six months on each charge and the fourth to imprisonment with hard labour for three months on each charge, all sentences to run concurrently.

Section 12 of the Ordinance in question reads as follows :-

” 12. (1) Any person who conspires against or in any manner attempts to undermine the lawful power and authority of any native authority shall be guilty of an offence and shall be liable on conviction thereof to a fine not exceeding one hundred pounds or to imprisonment with or without hard labour for one year, or to both such fine and imprisonment and shall be liable to be removed from Ashanti or into any part of Ashanti outside the area of such native authority’s jurisdiction.

  1. No order of removal made under this section shall be enforced until confirmed by the Governor who may vary it before confirming it.
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Except in so far as the Governor may by order otherwise direct, no proceedings shall be taken for an offence against this section without the consent of the Governor.

(4) Except with the permission of the Governor no Native Court and

Nana Oseino District Commissioner’s Court shall have jurisdiction to try an offence

Agyemanagainst this sectio’n.”

Prempeh II

v.The consent of the Governor was duly given to proceedings being

Agyeinan

& Ors.taken under sub-section (8), but there was no permission granted

under sub-section (4).

ICinon,

CJ.gd Upon appeal to this Court objection has again been raised to the

jurisdiction of the trial Judge, and the first point we have to decide is whether or not he had jurisdiction to try these offences summarily.

The summary jurisdiction of a Judge of the Supreme Court in criminal matters is laid down in section 149 of the Criminal Procedure Code in the following terms :—

” 149. Every Judge shall have jurisdiction to try summarily, subject to the conditions laid down in this part, any offence which may under any ordinance for the time being in force be heard and determined summarily before a Magistrate, such offence appearing to the Judge to be of such a nature that if proved it would be adequately punished by fine, or by imprisonment not exceeding six months, or by both.”

And in view of the provisions of section 167 of the same Code which reads

” 167. Whenever any charge has been brought against any person of an offence not triable by a Magistrate’s Court or as to which the Magistrate’s Court is of opinion that it is not suitable to be disposed of upon summary trial, a preliminary inquiry shall be held according to the provisions hereinafter contained by a Magistrate’s Court, locally and otherwise competent, and such Magistrate’s Court shall have power to commit such person for trial to the supreme Court or discharge him according to the provisions of this part,”

we are of opinion that the summary jurisdiction of a Judge is

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limited to the four corners of section 149 above quoted.

It is therefore necessary to ascertain what offences may be heard and determined summarily before a Magistrate. The jurisdiction of Magistrates is defined in section 48 of the Courts Ordinance, 1985, and the material part is as follows :-

” 43. (1) Every District Magistrate and Provincial Commissioner sitting as a District Magistrate shall have jurisdiction to hear and determine :

” (a) All offences punishable under any Ordinance by fine not exceeding one hundred pounds or imprisonment for twelve months.”

It is specially to be noted that in paragraph (a) the words are ” by fine not exceeding one hundred pounds or imprisonment for twelve months.” The words ” or by both ” do not follow at the end, and on this point the paragraph differs from the next paragraph (b), where the words ” or with both ” are to be found.

Now under section 12 (1) of the Ashanti Ordinance already quoted the offence is punishable by both fine of £100 and imprisonment for one year. It is clear therefore that the offence is not within the category of those which a Magistrate has jurisdiction to hear. Nor can we subscribe to the proposition that section 178 of the

Criminal Procedure Code serves to extend a Magistrate’s jurisdiction by enabling him to adjudicate summarily upon a case in which he has started a preliminary inquiry, if in the course of the inquiry it appears to him that the offence is of such a nature that it may suitably be adjudicated upon summarily. That section cannot operate to confer a wider jurisdiction than is conferred by section 48 of the Courts Ordinance.

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For these reasons we are of opinion that the Judge of the Court below had no jurisdiction to try the appellants summarily and that consequently the convictions are bad.

The appeals are allowed and the convictions of all the appellants under both counts are quashed.

After judgment the Court raised the question of whether in this case the Court should direct a judgment and verdict of acquittal be entered as mandated in section 10 (2) of Ordinance 11/35, inasmuch as it had held the proceedings to be without jurisdiction.

Dove asked the Court to do so.

Korsah and Adjaye were not present.

The following Order was made :—


It is directed that a judgment and verdict of acquittal be entered.

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