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Rex V. Johnson Jaiyesinmi Aiyeola (1948) LJR-WACA

Rex V. Johnson Jaiyesinmi Aiyeola (1948)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law and Procedure—Offence under section 103 of Nigeria CriminalCode—Trial on information after committal—No consent of law officer toinstitsason of proceedings—Meaning of ” institution of proceedings “—Information varied by Crown Counsel—Nullity of proceedings.

Where an accused person is tried before the Supreme Court on information, after committal for trial by a magistrate, the proceedings against him commence or are instituted by his being brought before the magistrate on the charge or charges upon which the preliminary enquiry then proceeds. If there is no consent of a law officer where this is required, the proceedings are throughout a nullity.

Cases referred to :

  1. Thorpe v. Priestnall (1897), 1 Q.B. 159; 66 L.J.Q.B. 248; 60 J.P. 821; 13 T.L.R. 95.
  2. R. v. Wallace (1797), 1 East P.C. 186.
  3. Beardsley v. Giddings (1904), 1 K.B. 847; 73 L.J.K.B. 378; 90 L.T. 651; 68 J.P. 222 ; 20 T.L.R. 315; 48 Sol. Jo. 352; 20 Cox C.C. 645.

Appeal from the Supreme Court of Nigeria.

Sir Adeyemo Alakija and Williams for Appellant.

Field, Crown Counsel, for Respondent.

The following judgment was delivered:

Johnston, J. The appellant in this case was charged and convicted on two counts which are stated as ” False claims by an official, contrary to section 103 of the Criminal. Code “. He has appealed against both convictions and sentences. There were originally four grounds of appeal to which an additional nine grounds have been added.

The chief ground of appeal for consideration is contained in additional ground No._ 3. It is stated as follows:—

” The prosecution resulting in the conviction of the accused should not have been instituted as there was nothing before the Court to show that the said prosecution was instituted by or with the consent of a Law Officer.”

The appellant is a person employed in the public service and the submission by appellant’s Counsel is that, in view of the appellant’s position, the trial is a nullity because there is nothing in the record to indicate compliance by the prosecution with the provisions of the last paragraph of section 104 of the Criminal Code. The relevant portion of the section is as follows:—

” A prosecution for any offence under this or any of the last three preceding

sections shall not be instituted except by or with the consent of a Law

Officer.

Counsel for the Crown has argued that formal consent need not be a part of the proceedings. That consent may be presumed. In this connection he has directed our attention to the Information on the record which is over the signature of Acting Senior Crown Counsel. In dealing with the meaning of the word ” instituted ” his contention is that the prosecution was instituted before the trial Judge on the Information and not before the Magistrate who held the preliminary inquiry: the institution of the prosecution being had in this case by Information filed in the Supreme Court after the accused had been committed

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for trial by the Magistrate under the provisions of Part 36 of the Criminal Procedure Ordinance.

It is necessary to refer to section 77 in Part XI of the Ctiminal Procedure Ordinance. The words ” Part XI ” are followed by the words ” Proceedings in General ” and ” Institution of Proceedings “. Then follows section 77 of which the relevant portions are as follows :-

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

  1. in Magistrate’s Courts on a complaint whether or not on oath, and
  2. in the Supreme Court-

” (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 . . . “

Section 78 prescribes the methods whereby proceedings may be instituted in a Magistrate’s Court.

There is a difference between institution of ” proceedings ” in the Supreme Court after committal for trial and institution of a prosecution. To ” institute ” a prosecution is to commence it, to begin it, or to originate it. In Halsbury (2nd Edition), Volume 9, page 80 paragraph 110, we find the following passage:—

“Criminal prosecutions, except where there are statutory provisions to

the contrary, may be commenced at any time after the commission of the

offence. A prosecution is commenced when an information is laid before a

Justice, or if there is no information, when the accused is brought before a

Justice to answer the charge, or, if there is no preliminary examination

before a Justice, when an indictment is preferred.”

If this were a case in which ” proceedings ” had been instituted in the Supreme Court ” by information of the AttOrney-General in accordance with the provisions of section 72 ” of the Criminal Procedure Code we would be justified in finding that the filing of such information was an institution of a prosecution. The case before us, however, is one in which the accused was brought before a Magistrate on a charge or charges laid by the police and was committed for trial before the Supreme Court after due inquiry.

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There are two English cases we have noted in which ” institution ” of a prosecution is interpreted. The earlier is that of Thorpe (appellant) v. Priestnall (respondent) (1). This was a case stated by the Police Magistrate for the city of Sheffield. The information, dated 6th July, 1896, stated that the appellant on 5th July, 1896, unlawfully did exercise the business . . . of . . . his calling upon the Lord’s Day, contrary to the form of the Statute, namely the Sunday Observance Prosecution Act, 1871, whereby:—

“No prosecution . . . shall be instituted . . . for any offence . . . under the Sunday Observance Act, 1676, . . . except by or with the consent in writing of the Chief Officer of Police of the police district in which the offence was teorromitted.”

The appellant was convicted under the Sunday Observance Act. The Chief Constable gave a verbal consent before the information was laid, and gave consent in writing after the information was laid and the summons issued. Objection was taken for the appellant on the ground that the consent required had not been duly given, but the Magistrate answered that it had been ” sufficiently well given “. He refused to stop the case and convicted the appellant. The appeal was allowed and the conviction quashed. Wills, J., in the course of his judgment said:—

“it is clear that the institution of a prosecution is something which may be done by the Chief Constable as well as with his consent. The Chief

Constable cannot grant a summons nor when a sonnnans is once granted has he any discretion to exercise as to whether it shall be served or not. Neither of these things therefore is the institution of the prosecution, which is a matter within his discretion. The institution of the prosecution must therefore be the laying of the information, I do not think that any distinction can properly be drawn between the words ‘ institute ‘ and ‘ commence ‘. . . . It may be that the Magistrate does not act upon the information and in that case no prosecution follows and there is nothing to which the phrase commencement of a prosecution ‘ is applicable. But where there is a prosecution I cannot see any reason why the laying of the information (which started it) is not the commencement of the prosecution.”

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Wright, J., was of the same opinion and referred to Rex v. Wallace (2) in which :— ” the Judges at a conference unanimously lield that the information and proceeding before the Magistrate was the commencement of the prosecution within the meaning of the Act, 8 8c 9 Will. 3, chapter 26, section 9 which provided that no prosecution should be made for any offence against that Act unless such prosecution be commenced within three months next after such offence committed . . . “

The latter case is Beardsley v. Giddings (3). The headnote is as follows:—

” By section 19 sub-section 1 of the Sale of Food and Drugs Act, 1899, a prosecution under the … Acts, shall not be instituted ‘ after the expiration of twenty-eight days from the time of purchase:—

” HELD, that the laying of the information, and not the service of the summons, was the institution of the prosecution.”

Lord Alverstone, C. J., stated in the course of his judgment :—

” It seems to me that the laying of the information and the issue of the summons upon that information were well known to be the commencement of a prosecution, and where the words used are prosecution shall not be instituted ‘ I think it would require a stronger case to enable us to hold that that did not mean the laying of the information.”

In the language of Wills, J., and Kennedy, J., in the same case the following passages occur :—

” The institution of a prosecution seems to me to mean ordinarily the commencement of the proceedings by which a person is brought to Court.

” The institution of a prosecution has certainly been taken to mean the commencement of the proceedings.”We are of opinion, therefore, that the prosecution in the present case was instituted by the accused being brought before the Magistrate on the charge or charges upon which the preliminary inquiry then proceeded and that in the absence of consent of a law officer those proceedings and hence all subsequent proceedings against the accused-appellant are a nullity. Upon this ground alone we allow this appeal, quash the convictions and sentences, and discharge the appellant. It is unnecessary for us to deal with the remaining grounds of appeal.


Appeal allowed.

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