3PLR – MBEREKPE V. ADIKES

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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MBEREKPE

V.

ADIKES

FEDERAL SUPREME COURT OF NIGERIA

F.S.C. 84/1962

8TH JUNE, 1962.

3PLR/1962/91 (FSC)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided)

SIR LIONEL BRETT, F.J. (Read the Judgment of the Court)

SIR VAHE BAIRAMIAN, F.J.

BETWEEN

NDOKWU MBEREKPE

AND

1. UDOM ADIKES
2. BEN GEORGE NWADIARO

MAIN ISSUES

CRIMINAL LAW AND PROCEDURE – Case stated to High Court – High Court making consequential order – Voidity of – Sections 31 and 32 Magistrates’ Courts Law Eastern Nigeria.

CRIMINAL LAW AND PROCEDURE – Case stated to High Court- Law not making provision for procedure the High Court will adopt – What Court to do in the circumstances- Sections 31 and 32 Magistrates’ Courts Law Eastern Nigeria.

PRACTICE AND PROCEDURE – COURT – Case stated to High Court -High Court making consequential order – Voidity of – Sections 31 and 32 Magis­trates’ Courts Law Eastern Nigeria.

PRACTICE AND PROCEDURE – COURT – Case stated to High Court – Law not making provision for procedure the High Court will adopt – What Court to do in the circumstances – Sections 31 and 32 Magistrates’ Courts Law Eastern Nigeria.

REPRESENTATION

Rotimi Williams, Q.C. (with him, Aseme) -for the Appellant. Nwokedi, Senior Crown Counsel, (with him, Oputa) -for the Respon­dents.

BRETT, F.J. (Delivering the Judgment of the Court):      The proceedings out of which this appeal originates started as a private prosecution in the Magis­trate’s Court of the Owerri Magisterial District in Eastern Nigeria on two charges under the Recognition of Chiefs Law, 1960. Objections were taken to the charges, and without hearing any evidence on either side the Magis­trate discharged the defendant. Acting under s.32 of the Magistrates’ Courts Law, 1955, the Director of Public Prosecutions required the Magistrate to state a case for the opinion of the High Court, and the case stated came up for hearing before W.J. Palmer, J., who described the proceedings as being “in effect an appeal against the dismissal of the charge” and made an order setting aside the order of discharge and remitting the case to the Magistrate’s Court to be dealt with according to law. The present appeal is brought against that order made by the High Court.

The Magistrates’ Courts Law, 1955, makes provision for the stating of a case for the opinion of the High Court in ss.31 and 32, which read as follows:­

”31.   At any time during the hearing of a criminal case in a Magistrate’s Court and before the decision of such Court has been pro­nounced the presiding Magistrate may, and when so required by the Director of Public Prosecutions shall, state a case on a point of law for the opinion of the High Court.

32. In any criminal case in which no public officer is a party where the Director of Public Prosecutions is of the opinion that any deci­sion of a Magistrate is erroneous in law, he may, at any time within six months from the date of the decision, require the Magistrate to state a case thereon for the opinion of the High Court.”

In the High Court Law the only reference to the jurisdiction of the High Court in cases stated is in s.34 which reads –

“34.   The Court shall have appellate jurisdiction to hear and deter­mine all appeals from the decisions of Magistrates’ Courts in civil and criminal matters given in the exercise of the original jurisdic­tion of the said courts as well as cases stated by Magistrates in ac­cordance with the provisions of this Law or any other written law.”

This section merely confers jurisdiction to hear and determine certain mat­ters, without specifying the powers which the High Court may exercise in the course of determining such matters.

The powers which the High Court may exercise in appeals from convictions or from acquittals or discharges are laid down in sections 38 and 39 of the Law, but the Law makes no further provision for the determination of cases stated. Where a case is stated under s.31 of the Magistrates’ Courts Law, that is to say, before the decision of the Magistrate’s Court is pronounced, all that the High Court could appropriately do is to give its opinion on the point of law raised, which is the purpose for which s.31 empowers the Magistrate to state a case. Section 32 also empowers a Magistrate to state a case “for the opinion of the High Court”, and there are no grounds for drawing a distinc­tion between cases stated under the two sections or for holding that in a case stated under s.32 the High Court has power to do more than give its opinion.

We were referred to the position in England, where, in a case stated under s.87 of the Magistrates’ Courts Act, 1952, the High Court has certain powers expressly conferred on it by s.6 of the summary Jurisdiction Act, 1857. That lends support to the view that, in the absence of any express provision conferring similar powers on the High Court of the Eastern Region, that Court cannot exercise any such powers.

The consequence is that when a case is stated for the opinion of the High Court under s.32 of the Magistrates Courts Law, the High Court is restricted to declaring its opinion on the point of law involved and cannot make any consequential order. It follows that in this case the order setting aside the Magistrate’s order of discharge and remitting the case to the Magistrate’s Court to be dealt with according to law was made without jurisdiction and was void.

ADEMOLA, C.J.F.:                    I concur.

BAIRAMIAN, F.J.:         I concur.

Appeal Allowed.