AKINYEMI AKINYEDE V. INSPECTOR-GENERAL OF POLICE

Coussey, J.A. The two questions for decision in this matter are whether the Judge on , appeal was right in holding that the trial Magistrate had exceeded his jurisdiction in finding the accused persons not guilty, and thereupon ordering that they be accordingly discharged and acquitted, and whether if the learned Judge was right in so holding, he misdirected himself in law in remitting the case to the trial Court for rehearing.

The accused, now appellants, were charged (i) with disorderly behaviour (in a police station) contra. section 182(1) (Xii) of the Township (Lagos) Bye-Laws made under section 31 of the Townships Ordinance Chapter 216 and (ii) with assault occasioning harm contra. Section 355 of the Criminal Code.

Proceedings by summary trial apply to the first charge by section 75 of the Township Ordinance and to the second charge by virtue of section 20 (1) (c) of the Magistrates' Courts Ordinance Chapter 122 with the consent of the accuscd which was given and duly recorded, and by virtue of sections 277(d) and 304 of the Criminal Procedure Code.

The provisions of Chapter IV Part XXXIII of the Criminal Procedure Code apply to summary trials.

By section 78 of that Code proceedings are instituted in a Magistrate's Court upon a complaint or upon a charge sheet and section 283 provides that if the complainant and defendant appear, the Court shall hear and determine the case.

Although the expression “charge” appears in section 286 of the Code, a material section to be considered, it will be observed that throughout the other sections of Part XXXIII, the term “complaint” is used to denote the-summary character of the proceedings.

If, at any time before a final order dismissing the complaint or convicting the accused under section 299, the complaint is withdrawn by the Prosecutor with the permission of the Court on sufficient grounds being shown, section 284 gives the Court a discretion to acquit the accused or to direct that the accuse, instead of being acquitted, shall be discharged. This is the only occasion, on a summary trial, when the Court may direct an acquittal, namely, when the Complainant, either m the course of the evidence in support of the charge or of the defence but before a final order of dismissal or conviction, satisfies the Court that there are sufficient grounds for permitting the complainant to withdraw his complaint.

But if it appears to the Court, of its own motion or on a no case submission at the close of the case in support of the charge, that no case is made out sufficiently to call upon the accused to make a defence, the Court shall under section 286 discharge him as to the particular charge before the Court. The legislature did not intend that in such case the discharge should be an absolution of the party charged so that a plea of autrefois acquit should be available to him.

If, on the other hand, a prima facie case is made out against the accused and he is called upon to make his defence, then whether he makes a statement without being sworn or elects to give evidence on oath or to call witnesses, the Court, upon conclusion of the hearing of the case, acting under section 299, shall either dismiss or convict the accused.

When a complaint is dismissed on the merits at the close of the case for both sides, by virtue of section 301 (1) such dismissal is equivalent to an acquittal.

The submission on behalf of the accused-appellant to the effect that section 286 is not exhaustive of the Magistrate's power and that he may, in a summary trial, enter a verdict of not guilty and acquit the accused at the close of the evidence in support of the charge, cannot be sustained.

By sections 25 and 52 of the Magistrates' Courts Ordinance Cap. 122 a magistrate's judicial powers are regulated, in this instance, by the Criminal Procedure Code.

From the foregoing it is clear that a Magistrate has no power in a summary trial, at the close of the evidence in support of the charge, to find the accused not guilty and to acquit him of the charge. A Magistrate must act in conformity with the legal requirements of the Code. In this case the learned Magistrate acted without jurisdiction in finding the accused not guilty and in ordering an acquittal. It follows that this point was rightly decided by the learned Judge on appeal.

Reference may be made to section 75 of the Code in Part X which provides that where before a Magistrate's Court a prosecutor withdraws in the course of a trial-

(i) before the accused is called upon to make his defence, he shall be discharged in respect of the offence; or

(ii) after the accused person is called upon to make his defence, he shall be acquitted in respect of such offence.

As to the Second question, it is argued by reference to sec. 38 of the Magistrates' Courts (Appeals) Ordinance Cap. 123 that the learned Judge, upon holding that the Magistrate had acted in excess of jurisdiction in acquitting the accused, should have treated as a mistake that part of the decision appealed from which directed the acquittal of the accused and have amended the order to one of discharge so as to terminate the proceedings instead of ordering a re-trial by virtue of section 43.

In our opinion section 38 has no application to the present matter. That section enables the Court to correct a defect in form or omission or mistake appearing on the face of the record. Here the appeal is from "the whole Judgment as being without jurisdiction. There has been a substantive error in law and section 38 does not empower the appellate Court to re-write or expunge any portion of a Magistrate's judgment.

As this Court stated in Commissioner of Police v. Ganiyu Adisa Motayo W.A.C.A. 3131, Cyclostyled Reps. January-May 1950, Page 1, :-

“The provisions of section 43 of the Magistrates' Courts (Appeals) Ordinance, however, refers to an order for the appellant to be retried, clearly recognising the fact that he has already been tried but nevertheless empowering the Judge to order a second trial. In our view the legislature clearly intended that in such cases the common law principle (that no man should be tried twice for the same offence) should be disregarded and a second trial be permitted should the Judge in his discretion so order”.

The judgment appealed from must therefore be confirmed and this appeal is dismissed.

Appeal dismissed.