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3PLR/1980/30 (HC)


BEFORE: Adimora, J.



Nwali for the appellants;

Umearokwu, Principal State Counsel, for the respondent.



CRIMINAL LAW AND PROCEDURE:- Sentence-binding over-form -binding over “to be of good behaviour” under Criminal Procedure Law, s.300 not quashed for including “and keep the peace” even though wider than words in section

PRACTICE AND PROCEDURE:– Appeals-conditions of appeal-cash deposit to ensure prosecution of appeal­ magistrate’s court not to require deposit from appellant beyond usual cost of copies of record of proceedings and any recognizance

PRACTICE AND PROCEDURE:-Appeals-right of appeal-binding over orders-where acquitted but bound over by magistrate’s court accused has no appeal as of right, only with leave of High Court under Constitution of Eastern Nigeria, s.53(2)(a)




Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine




The appellants, Joseph Nwankwo and Boniface Nwoja, were charged at Ezzikwo Magistrate’s Court, sitting at Onueke, with two counts of unlawful assault and removing boundary marks with intent to defraud. The prosecution fielded three witnesses to establish the truth of the charge, but the defence successfully made a no-case submission. The learned trial senior magistrate, S.J.O. Ezeoke, felt convinced that the evidence adduced by the prosecution was so manifestly unreliable that no reasonable tribunal could safely convict on it and so dismissed the complaint on the merits under s.286 of the Criminal Procedure Law. However, he invoked his powers under s.300 of the Criminal Procedure Law and bound over both defendants “to be of good behaviour and keep the peace for a period of 18 months” and in default of com­pliance each would go to prison for three months.


It is against the binding over order of the learned trial magis­trate dated July 30th, 1979 that this appeal is brought. Two grounds of appeal were filed, namely: (a) that the magistrate’s court has exceeded its jurisdiction in the case; and (b) that the order is erroneous in point of law in that there was no basis what­soever for the order made, nor were the accused persons given any opportunity to be heard before the court proceeded to make the order.


When the appeal came up for argument on June 13th, 1980, learned Principal State Counsel for the respondent, Mr. Umea­rokwu, took a preliminary objection to the effect that –

“1.     The appeal does not lie to the High Court as of right under s.53(1)(b) of the Constitution of Eastern Nigeria (cap. 25) … applicable to Anambra State, because the appellants have not been convicted in a criminal proceeding nor have they been sentenced to imprisonment for any term exceed­ing three months or at all.


  1. Section 57(1) of the Magistrates’ Courts Law (cap. 82) … applicable to Anambra State, which refers to para. (g) of subs. (1) of s.53 of the said Constitution of Eastern Nigeria, gives a right of appeal in criminal cases only to “a person sentenced by a Magistrate’s Court in a criminal pro­ceeding.” A binding over under s.300 of the Criminal Pro­cedure Law is not such a sentencing and therefore does not come within the contemplation of s.57(1).
  2. This appeal properly falls within the provisions of s.53(2)(a) of the said Constitution of Eastern Nigeria … and therefore could only be brought from a subordinate court with prior leave of the High Court, a condition precedent which has not been shown to have been fulfilled.”


Finally he referred the court to the case of Okojie v. Insp.-Gen. o f Police (9) where, although the appellant was convicted, cautioned and discharged in the court below by the trial magistrate before being bound over to be of good behaviour, the appellant was held to lack the power to appeal without leave of the High Court. He urged the court to strike out the appeal as being improperly be­fore the court.


Learned counsel for the appellants, Mr. Nwali, who appeared to have been swept off his feet by the surprise legal bout, asked for an adjournment to fortify himself for a reply. On the adjourned date he countered that the preliminary objection could not be sustained for two reasons:

“1.     The relevant sections of the Constitution of Eastern Nigeria and the Magistrates’ Courts Law … on which the respondent’s counsel heavily relied are no longer good law, both laws having been abrogated and supplanted by the Constitution of the Federal Republic of Nigeria (Enactment) Decree of 1978.

  1. The force of the cited case of Okojie v. Insp.-Gen. of Police has been spent since the decision was based on the same old law and Constitution which have been swept away. The only appellate jurisdiction provided for in the 1979 Federal Constitution is s.213, which incidentally affects the Supreme Court alone, and as no provision was made for other courts below that one the intention manifested is that prac­tice and procedure with respect to appeals in the lower courts is now at large and can be invoked at will. He urged the court to hold that the appeal was properly brought.”


The respondent’s counsel briskly pointed out in reply that s.274(1) of the 1979 Constitution preserved Anambra State’s existing laws, subject of course, to the provisions of the new Constitution.


Because the first complaint against the order of the learned trial magistrate was excess of jurisdiction, and a defect of com­petence being extrinsic to jurisdiction, I declined at that point in time to rule on the preliminary objection and allowed the appeal to proceed to argument on the merits.


The appellants canvassed on the first ground that the learned trial magistrate exceeded his jurisdiction by making an order in the following terms:

“In the interest of peace, I shall exercise my powers and invoke the provisions of s.300 of the Criminal Procedure Law, and bind each of the accused persons to be of good behaviour and keep the peace for a period of 18 months from today and in default, each will go to prison for three months accordingly.”


Counsel said s.300 of the Criminal Procedure Law conferred only the power to bind parties “to be of good behaviour,” and that by extending his order to include both “to be of good be­haviour” and “to keep the peace” the learned magistrate was certainly going wider than his powers under that section. just as s.300 of the Criminal Procedure Law was limited to “good be­haviour” so is s.35 of the Criminal Procedure Law limited to “keeping the peace” and each section has a different significance and connotation in law. Whether the order is to be made under s.35 or s.300, only s.44 of the Criminal Procedure Law provides the procedure to be adopted, and the learned magistrate did not follow this modus, so his order is bad in law and should be annulled. He buttressed his arguments with the rationale in the following decided cases: Ejinkonye v. Commr. of Police (4), Kebinde v. Commr. of Police (5), R. v. Senior Magistrate, Ibadan, ex p. Ajani (10), Nweme v. Commr. of Police (7).


Arguing the second ground learned counsel said that although s.300 of the Criminal Procedure Law does not so provide, the trial magistrate ought to have heard the defendants before making his order. This would accord with the provisions in s.22(2) and (5) of the 1963 Constitution which enjoins that there must be a fair hearing on any issue before the courts. He referred to the comment after s.300 of the Criminal Procedure Law in Brett & McLean’s Criminal Law & Procedure in the Six Southern States of Nigeria, 2nd ed., art. 487 at 172 (1974) and concluded that the learned magistrate was in error not to have called for the explanations or comments of the appellants before arriving at a decision. He urged that the appeal be allowed.


By way of protest to the court, learned counsel for the appel­lants complained bitterly that the conditions of appeal prescribed by the learned senior magistrate in this case were so stringent that they tended to defeat the ends of justice. He said he had to deposit his personal N150.00 to satisfy the third condition in order that the appeal might be entered, as the appellants could not afford that amount. Although this excessive condition of appeal was not made a ground of appeal, I admitted in evidence the letter from the Senior Registrar, Ezzikwo Magistrate’s Court, dated August 20th, 1979, in which the conditions of appeal fixed by the trial magistrate were conveyed to the appellants. I took this view be­cause of the revisional jurisdiction of the High Court over magis­trates’ courts as provided in s.58 of the Magistrates’ Courts Law (cap. 82). The letter reads:

“I have to draw your attention to the Notice of Appeal filed by you in the above mentioned case and to say that His Worship the Senior Magistrate has entered the following con­ditions for the appeal:

  1. The accused/applicants should deposit the sum of ?430.00 for records of proceedings.
  2. The applicants should enter into bond in the sum of ?4200.00 each with one surety each in like sum to prosecute this appeal within 30 days from date.
  3. The applicants should in addition to (2) above deposit the sum of ?4150.00 as security that the appeal should be prosecuted within 30 days aforementioned in (2) above.”


In reply to both submissions, Principal State Counsel for the respondent contended that the appellants must bring themselves within the warm cover of s.53(1)(a)-(g) of the Constitution of Eastern Nigeria which regulates appeals to the High Court from subordinate courts for the appeal to be properly brought, other­wise the High Court cannot listen to their complaint. He said the appellants heavily relied on s.53(1)(d) which deals with whether any of the provisions of Chapter III of the 1963 Constitution of the Federation has been contravened in relation to any person; that certainly there has been no infringement of the constitutional rights of the appellants, since they were properly charged in the lower court, tried and discharged on the merits on a no-case sub­mission; that s.300 of the Criminal Procedure Law does not provide that those tried and discharged should be heard de novo before a binding order is handed down, nor were the appellants convicted so as to call for an allocutus.


He further argued that the appeal is misconceived in that binding over to keep the peace is not a punishment but a pre­ventive measure to forestall an apprehended breach of the peace; that keeping the peace is a part of good behaviour and that they are not interchangeable; that the learned trial magistrate in making the order had in mind the way matchets and other deadly weapons are wielded with fatal consequences in the locality and the records of appeal support the view that the binding over order was not made in vacuo. He referred to the Supreme Court decision in the case of Atte v. Commr. of Police (1) to fortify the proposition that the trial court acted properly and within its jurisdiction. He said the Northern Nigeria decisions cited in argument were based on a different Code with different reasoning and are not persuasive.


With regard to the protest by the appellants counsel, Mr. Umearokwu contended that where conditions of appeal were prohibitive or excessive, they should be made a ground of appeal proper, to show by argument that the conditions imposed were punitive or oppressive. He asked that the appeal be dismissed as lacking in merit.


I have carefully listened to and weighed the arguments in support of the appeal and those discrediting it. I shall first deal with the appellants’ protest against an oppressive condition of appeal. There is no doubt that this protest is a collateral matter, outside the grounds of appeal filed, but not inconsistent with them. In the interests of the overall administration of justice, it is also the duty of an appellate tribunal to supervise courts below to see that they do not, without justification under the law, adopt courses of conduct which clog the wheels of citizens’ constitutional rights of access to the courts of the land. The letter from the Chief Registrar shows beyond doubt that what was, in the circumstances of these peasant appellants, a sizeable chunk. N150.00, was exacted as what was styled “security that the appeal should be prosecuted within 30 days,” whatever that phrase connotes. Of course it is fallacious to say that the appeal must be prosecuted within 30 days, for all the appellants were expected to do to keep their appeal alive was to meet the first two conditions stipulated in the letter after duly filing their notice of appeal and memorandum of grounds of appeal within 30 days of the pro­nouncement of the decision being attacked – see O. LV rr. 4, 5 and 6 of the High Court Rules (cap. 61). Thereafter, the appeal becomes pending; making out certified copies of the proceedings and trans­mission of these to the High Court Registry are administrative matters in the court below, over which the appellants have no control: see Ogunremi v. Dada (8). The first two conditions given in the letter were that the appellants were to deposit N30.00 for records of proceedings, as well as enter into recognizances for N200.00 each with one surety each in the like sum, which latter amount was quite a reasonable sum, conditioned for the prosecu­tion of their appeal. These two conditions were adequate and sufficient sanctions, for if the appellants defaulted thereafter, not only could the recognizances be enforced, but the binding over restraint which they were anxious to annul would subsist. It has not been suggested that the principal misdemeanour for which the appellants were tried and discharged before being bound over to keep the peace had any more serious consequences. The two normal conditions exacted in prosecuting criminal appeals from the magistrates’ courts are the cost of procurement of the records and recognizance to prosecute the appeal.


The third condition imposed in this case – the deposit of a sizeable sum of money in court as compulsion for prosecuting the appeal – is not familiar. Departures from settled practice and pro­cedure without any apparent reason can leave a court open to allegations of partiality: see the case of Dipcharima v. Ali (2). Just as his duty in respect of admitting to bail is judicial and not ministerial, the imposition of such excessive deposits by a magistrate before an appeal can be brought amounts to a denial of the con­stitutional right of appeal. To say the least, the third condition of appeal imposed in the circumstances of this case was otiose, oppressive and indefensible. If the deposit has not been claimed, it should be released and refunded forthwith.


I now come to the objection in law taken by learned counsel for the respondent. It is not in doubt as was canvassed by counsel for the appellants that on 1st October, 1979 the new Federal Constitution became supreme and therefore the only constitution in the country vested with the force of law. But the matter does not end there, for the new Constitution did not make a clean sweep of the corpus of the old law as contended. Sections 274 and 275 of the Constitution of the Federal Republic of Nigeria, 1979 saved and preserved throughout the Federation both the existing courts of law and existing laws which were in existence immediately before the date when the new constitution took force. The result is that both the Magistrates’ Courts Law (cap. 82) and the High Court Law (cap. 61) are still the applicable laws in Anambra State until the State House of Assembly amends or abrogates these laws or a court of competent jurisdiction declares them invalid.


It is basic that jurisdiction in an appellate court can only be conferred expressly by a statute. In the case of Ugwu v. Att.-Gen., E.-Central State (11), Coker, J.S.C., delivering the judgment of the Supreme Court observed (5 ECSLR at 516; (1975) 6 S.C. at 16): “Undoubtedly, all rights of appeal are statutory and in order to exercise a right of appeal it must be demonstrated by the prospective appellant that such a right has been or is conferred on him by some statute.” The burden of proving the jurisdiction of an appellate court is cast upon the party who asserts that juris­diction: see Egedegbe v. Urhievbaye (3).


Counsel for the appellants quoted s.213 of the Constitution of the Federal Republic of Nigeria as his authority, but this does not require attention since this section comes within Part 1 of Chapter VII which deals with Federal courts, which we are not. Counsel for the appellants also relied on sub-s. (1)(d) of s.53 of the Constitution of Eastern Nigeria as grounding his jurisdiction, because according to him, their constitutional right to a fair hearing under Chapter III of the 1963 Federal Constitution was denied by the trial magistrate who did not give them the opportunity to make representations to him before handing down the binding over order at the end of the trial. With respect, this reasoning is naive and invidious, for as was said in the beginning of this judg­ment the appellants were charged under ss.351 and 457 of the Criminal Code which had nothing in common with denial of constitutional rights. The appellants were aggrieved because their criminal prosecution ended up with a binding over, even though they were discharged on the merits in the actual trial. The appeal is against the binding over order and nothing else.


The power to bind over seems no more than a preventive measure resorted to not because there has been any breach of the law but because a possible breach is apprehended. It is designed to guard against future lawlessness. Binding over has been described as a curious institution, not only because its origin is obscure, but also as all the subjects of the realm are anyway bound to keep the peace, a binding over does not operate as a conviction or an acquittal: see Kiralfy, Englisb Legal System, 2nd ed., at 247 (1956); Keir & Lawson, Cases in Constitutional Law, 4th ed., at 408 (1954); Wade & Phillips’ Constitutional Law, 5th ed., at 398 (1955).


It would seem that two different parts of our Criminal Pro­cedure Law deal with a magistrate’s powers to exercise this pre­ventive justice, to wit:

(a)     Part IV (ss. 35-52) of the Criminal Procedure Law which confers the power to demand security for keeping the peace or for good behaviour as a purely preventive measure. Section 44(2) confers a right of appeal on any person aggrieved by an order to give security under this part.


(b)     Sections 300, 309 and 435 confer the power to require such security at the conclusion of a trial for a substantive offence, whether the prosecutor won or the complaint was dismissed. Either the defendant or the complainant or both of them could be sub­jected to the order in the light of the evidence disclosed to the court at the hearing. No similar provision for appeal as in s.44(2) exists in these sections of the Criminal Procedure Law. And no conviction or sentence being involved, a decision under these sections is only appealable under s.53(2)(a) of the Constitution of Eastern Nigeria, 1963 which requires prior leave of the High Court: see Okojie v. Insp.-Gen. of Police (9).


I hold that although a right of appeal exists under s.300 of the Criminal Procedure Law, it can only be brought as expressly con­ferred by statute. Therefore the appellants cannot appeal as of right without prior leave of this court. The cases of Nweme v. Commr. of Police (7), Ejinkonye v. Commr. of Police (4) and Kebinde v. Commr. o f Police (5) cited in argument by counsel for the appellants are inapposite in this appeal, being decisions under s.35 of the Criminal Procedure Law or under a similar enactment in the Criminal Procedure Code of the Northern States. As I have observed earlier, procedure under s.35 of the Criminal Procedure Law is merely preventive: see the observations of Oputa, C.J. in the case of Mbaoma v. Efmofor (6) (1 L.R.N. at 18).


Counsel for the appellants also contended that the binding over should be quashed because the order of the magistrate coup­ling “to be of good behaviour” with “and to keep the peace” was bad in law for misjoinder. I concede that the two phrases may have different connotations and that “to be of good behaviour” is wider and even embraces “to keep the peace.” But in the case of R. v. Senior Magistrate, Ibadan, exp. Ajani (10) Morgan, J. held that an order to be of good behaviour and keep the peace would not be quashed merely because it was not according to the exact terms of the provision of s.300 of the Criminal Procedure Ordin­ance. The reasoning of the learned judge in that case and the discretionary powers of the trial magistrate under s.300 of the Criminal Procedure Law were both affirmed by the Supreme Court in the case of Atte v. Commr. of Police (1).


It remains for me to say that, having regard to the volatile nature of the dramatis personae involved and the facts of the land dispute before him, the learned trial magistrate was prudent in making the order he did. The appeal is struck out.


Appeal dismissed.



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