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INSPECTOR GENERAL OF POLICE
(1956). N.R.NLR 49; [ZARIA-KANO APPEAL NO. K/15A/1956]
MAY 2, 1956
BEFORE THEIR LORDSHIPS:
CRIMINAL PROCEDURE – Ordinance – Section 380 on-consecutive terms-Magistrates of the second grade-Restriction of one Year on aggregate in one case.
PRACTICE AND PROCEDURE – Magistrates’ Courts (Northern Region) Law, 1955-Sections 19 and 20(b) -Criminal jurisdiction-Magistrates of the second grade-Consecutive terms in one case-Aggregate exceeding one year not allowed.
WORDS AND PHRASES-”Cause”; “Subject to.”
Shyngle for the appellant.
McLean, Crown Counsel, for the respondent.
SMITH J. (delivering the judgment of the court);
The appellant was tried by the Magistrate Grade II Kano in one trial on a charge containing three counts each of which alleged a separate offence. He was convicted on all counts and sentenced to terms of six months imprisonment on each of the first and second counts and to twelve months imprisonment on the third count. The sentences were to run consecutively and in the aggregate amounted to a term of two years imprisonment.
The only question in this appeal is whether a magistrate of the second grade may in one case impose consecutive terms of imprisonment exceeding one year in the aggregate.
Mr. Shyngle, for the appellant, relied on sub-section 20 (b) of the Magistrates’ Courts (Northern Region) Law 1955 which reads
“(b) Magistrates of the Second grade: all those (jurisdiction and powers) set out in paragraph (a) herein save that the maximum fine and the maximum period of imprisonment shall in no cause exceed a sum of one hundred pounds or a period of one year’s imprisonment respectively;”
He urged that the power to impose consecutive sentences given in section 380 of the Criminal Procedure Ordinance (Chapter 43 of the Laws of Nigeria) was limited to the period of one year provided in sub-section 20 (b) of our Magistrates’ Courts Law and that to place any other construction on the language of this sub-section would nullify the effect thereof.
Mr. McLean, for the respondent, contended that a magistrate of any grade, by virtue of the definition of a magistrate in section 2 of the Criminal Procedure Ordinance, could impose consecutive terms of imprisonment aggregating four years; that the opening words of section 20 of our Magistrates’ Courts Law, which read-
“Subject to the provisions of this Law or of any other written law the jurisdiction and powers of magistrates of the first, second and third grades in criminal causes shall be as follows-”
brought in section 380 of the Criminal Procedure Ordinance and that as this was the section which gave power to impose consecutive sentences full effect should be given thereto.
The opening words “Subject to the provisions of this Law and of any other written law” in section 20 of the Magistrate Courts (Northern Region) Law are similar to those that occur at the beginning of section 19, to which one must refer in reading section 20. These sections repeat the wording of the corresponding sections 20 and 21 of the Magistrates Courts Ordinance (Chapter 122 of the Laws of Nigeria) which was repealed an ( replaced by our Magistrates Courts Law. In order to ascertain the intention behind these opening words it will be useful to go back to the Protectorate Courts Ordinance 1933; to examine the section of this Ordinance; and to trace the history of the jurisdiction and powers conferred on Magistrates from 1933 ul to the present.
There are two sections of the Protectorate Courts Ordinance 1933 which are relevant, namely section 31, which reads
“31. In addition to any jurisdiction conferred by any other ordinance, a Magistrate’s Court shall have and exercise original and appellate jurisdiction in civil and criminal matters as in this ordinance provided.”
and section 33 (as amended by section 7 of the Protectorate Courts (Amendment) Ordinance 1936) the opening words of which are:
“Subject to the conditions prescribed by the Criminal Procedure Ordinance so far as the same are applicable, every Magistrate’s Court shall have jurisdiction for the summary trial and determination of criminal cases.”
The Protectorate Courts Ordinance made it plain that it was conferring certain civil and criminal jurisdiction on magistrates “in addition to any jurisdiction conferred by any other ordinance,” and that the criminal jurisdiction conferred was “subject to” conditions contained in the Criminal Procedure Ordinance then in force. It is reasonable to infer that there is a distinction between the phrase “in addition to” and the phrase “subject to.” The latter phrase as is apparent from the two sections of the Protectorate Courts Ordinance quoted above does not add to but-places a limitation or condition on what follows in section 33 in so far as the provisions of the Criminal Procedure Ordinance then existing were applicable to summary trials. For example, a magistrate, when trying a criminal case, could not validly exercise his jurisdiction unless the defendant was brought before him on a proper charge nor could he do so in particular cases unless the defendant elected to be. tried summarily.
Presumably the draftsman of the Magistrates Courts Ordinance (Chapter 122) which repealed and replaced the Protectorate Courts Ordinance had the latter ordinance in mind when drafting the new provisions. He omitted section 31 of the Protectorate Courts Ordinance from these new provisions. He dealt with the civil and criminal jurisdiction of a magistrate of the first grade in sections 19 and 20 respectively of the Magistrates Courts Ordinance, and began each of these sections not with the words “in addition and subject to” but with “subject to” only; and it must be inferred that this was done deliberately.
Section 20 set out the criminal jurisdiction and power of a magistrate of the first grade. As to his jurisdiction, he was informed of the classes of offences he could deal with; and as to his power, what he could do in regard to those offences. For example, he could try an offence punishable with two years imprisonment and impose a sentence of two years; or, in certain circumstances, try an offence punishable with more than two years and impose a term of up to two years only. At the same time the legislature told him that it was not removing any restrictions already in existence; as for example, section 11 of the Registration of Business Names Ordinance (Chapter 195) which provided for a penalty of £5 if a firm having ceased to carry on business failed to give notice to have its name removed from the register. This is an instance of a class of offence which fell within section 20 of the Magistrates Courts Ordinance but the Registration of Business Names Ordinance vested the jurisdiction in the Supreme Court and the opening words of section 20 of the Magistrates Courts Ordinance were intended to warn off a magistrate of the first grade from thinking that this disability under the Registration of Business Names Ordinance was being removed.
The effect of the words “subject to the provisions of this Act” in section 19 of the Judicature Act 1873 was considered by the Court of Appeal in Ormerod and others v. The Todmorden Joint Stock Mill Company Limited (1882) 8 Q.B.D., p.664. At p.676 of the report Brett L.J. said-
“The general right of appeal to this Court is given by the 19th section of the Act of 1873, and the words of that section are: ‘The said Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment or order save as hereinafter mentioned Her Majesty’s High Court of Justice, or of any judges or judge thereof, subject to the provisions of this Act and to such rules and orders of Court for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.’ Now, with deference to my Lord, my view of that section, and the one, on which I think this Court has hitherto acted, is that: the only limitation of appeal ‘from any judgment on order’ is ‘save as hereinafter mentioned,’ and that the! Words ‘subject to the provisions of this Act’ are in they same condition as the words which are coupled with them, namely, ‘such rules and orders of Court’ as may’ be made, and that therefore the words ‘subject to the provisions of this Act’ are only as to the mode of procedure on appeal, and are not words of limitation of appeal; to this Court. It is true that in some cases we have gone; further and have said if the Judicature Act has not in! terms repealed Acts which say positively that there shall be no appeal those statutes unrepealed remain in force, but that where there are no such statutes then the only, limitation is in those words in the 19th section ‘save as hereinafter mentioned.’”
Lord Coleridge C.J. at p.673 of the same report, held that
“The 19th section of the Judicature Act, 1873, gives no doubt in general terms to this Court jurisdiction and power to hear and determine appeals from any order of any judge, subject to the provisions of this Art. But if, according to the fair interpretation of the Act itself, certain orders are not intended to be subject to appeal, why then the 19th section will not subject them”
and Holker, L.J., at p. 681, after quoting section 19 of the Act of 1873, went on to say
“The power of appeal which is there given is hardly limited at all, though there is not a universal appeal given against the exercise of discretion. But if one looks at the subsequent sections and the orders made under the Act of Parliament, one will find that there are cases in which an appeal is excluded, and therefore, if it had been the intention of the legislature to have excluded an appeal in a case like the present, one would have thought that language to that effect would have been used.”
These dicta of their Lordships fortify us in the view that the words “subject to” are restrictive and have to be read in their context. We are of the opinion that the opening words of section 20 of the Magistrates’ Courts Ordinance were meant to limit or exclude from the jurisdiction and powers conferred by the section on a magistrate of the first grade any special offences or particular powers which by some other ordinance or law a magistrate was informed either specifically or by implication that he had no jurisdiction or powers, or that his jurisdiction or powers were curtailed in same particular respect.
It follows that Section 380 of the Criminal Procedure Ordinance (Chapter 43 of the Laws of Nigeria), which gave a power to impose consecutive terms of imprisonment was not one of the provisions contemplated in the opening words of section 20 of the Magistrates’ Courts Ordinance. The effect of section 380 of the Criminal Procedure Ordinance must be determined by considering that section side by side with section 20 of the Magistrate’ Courts Ordinance.
Section 20 spoke of the offences a magistrate of the first grade could try and of the imprisonment he could impose in respect of those offences, there was no limitation in the section in regard to a cause. If two or more offences were included in ‘one charge and heard at one trial there was no restriction in section 20 precluding a magistrate of the first grade from passing consecutive sentences of imprisonment aggregating four years, as provided in section 380 of the Criminal Procedure Ordinance. Both sections were in harmony and full effect could be given to each.
On the other hand, sub-section 21 (b) of the Magistrates’ Courts Ordinance expressly provided in conferring criminal jurisdiction on a magistrate of the third grade “save that the maximum period of imprisonment shall in no cause exceed… a period of three months..” The effect thereof read side by side with section 380 of the Criminal Procedure Ordinance was this -’a magistrate of the third grade could impose consecutive sentences in a case by virtue of section 380 but the aggregate term of imprisonment must not exceed three months because of the express limitation in sub-section 21 (b). If this interpretation is not to be adopted then the words “in no cause,” which were interpreted in Fashushi v. Police (XX N.L.R. p.126) to mean “in no case,” must be read as meaning “in respect of no offence”; but the court cannot alter ‘cause’ to ‘offence’ particularly in view of the fact that there was no limitation in regard to a cause in section 20 of the Magistrates’ Courts Ordinance. The legislature deliberately introduced this limitation when conferring jurisdiction on a magistrate of the third grade in sub section 21 (b) and effect must be given to it.
Alternatively by applying the maxim generalia specialibus non derogant one achieves the same result. Section 380 of the Criminal Procedure Ordinance was a general provision on consecutive sentences; sub-section 21 (b) of the Magistrates’ Courts Ordinance made a special provision limiting the powers of a magistrate of the third grade when imposing a sentence of imprisonment; the special provision must prevail and must be read as a tacit qualification of the general provision (Seward v. The Vera Cruz, (1884) 10 App. Cas. 59 and Paddington Burial Board v. Inland Revenue Commissioners, (1884) 53 L.J. Q.B. 224).
We have striven to decide the question arising in this appeal by a mode of interpretation which conforms to the canon that words must be taken in their ordinary meaning, and that they must be read in the context in which they occur; that effect must be given as far as possible to both sub-section 21 (b) of the Magistrates’ Courts Ordinance and to section 380 of the Criminal Procedure Ordinance; and that this is feasible on the maxim of generalia specialibus non derogant.
We have dealt with the question as if it arose under the former Magistrates’ Courts Ordinance (Chapter 122) for the sake of historical convenience. This Ordinance has been repealed and replaced by the Magistrates’ Courts (Northern Region) Law, 1955, which in sections 19 and 20 repeats the wording of the former sections 20 and 21. The fact that a Chief Magistrate is now mentioned in section 19 does not affect the argument for the purposes of this appeal. Sub-section 20(b) of our Magistrates’ Courts Law repeats the wording of the subsection 21(b) of the former Magistrates’ Courts Ordinance except that the sub-section of the new law refers to a magistrate of the second grade. The sub-section says that a magistrate of the second grade shall not impose more than twelve months imprisonment in any one case. Had the legislature intended otherwise we think that some words indicating another intention would have been included in the section.
The aggregate term of imprisonment imposed by the Magistrate Grade II Kano must therefore be reduced to one year. The most convenient way of dealing with the matter is to order that these term of imprisonment be made concurrent. We do not however wish to appear to be saying that this was a case “where concurrent sentences should have been imposed.
Appeal on sentence allowed; aggregate of terms reduced.