JOSEPH ZAKIAH v BOARD OF CUSTOMS & EXCISE (LD/ICA/64) [1964] NGHC 11 (21 February 1964)

**JOSEPH** **ZAKIAH** **(APPELLANT)** **_v_.** **BOARD** **O****F** **C****USTOM****S** **&** **E****XCIS****E** **(RESP****O****NDENT****)** **(1964)** **All** **N.L.R.** **463** **Div****i****si****o****n:** High Court, Lagos **D****at****e** **o****f** **Judgment:** 21st February, 1964 **C****as****e** **Num****b****er:** LD/ICA/64. **Before:** Onyeama, Ag. C.J. (Appeal from Magistrate's Court.) The appellant was tried summarily without being called upon to elect as required by section 304(2) of the Criminal Procedure Act. The offence charged carries a punishment of two years imprisonment and a fine which can be imposed either on summary conviction or on conviction on indictment. On appeal against conviction and sentence, the appellant contended that the trial was a nullity. **_HELD_**** _:_** An offence which by or under a statute is punishable on summary conviction or on conviction on indictment ought to be dealt with as an indictable offence, and since the accused person was not called upon to elect as required by section 304(2) of the Criminal Procedure Act, the conviction and sentence in the Magistrate's Court ought to be set aside. _A_ _ppea_ _l_ _allowed_ _._ _Cas_ _e_ _ref_ _e_ _rr_ _e_ _d_ _to_ _:__-_ _Hastings_ _and_ _Folkestone_ _Glassworks_ _v._ _K_ _alson_ (1949) 1 KB. 219 _A_ _ct_ _s_ _ref_ _e_ _rre_ _d_ _to:__-_ _Crimi_ _n_ _a_ _l_ _Proc_ _e_ _dur_ _e_ _Ac_ _t_ _,_ _Cap_ _._ _4_ _3_ _s_ _ectio_ _n_ _3_ _04(2)__._ _Customs_ _and_ _Excise_ _Management_ _Act,_ _No._ _SS_ _of_ _1958,_ _section_ _161._ _Lardner_ , for the Appellant. _O_ _gunder_ _e_ , for the Respondent. Onyeama, Ag. C. J. of Lagos:-One of the grounds of appeal is that the trial was a nullity. If this ground is upheld it will be unnecessary to consider the other grounds since there would in law have been no trial. The offence charged carried a punishment of two years imprisonment and a fine, which punishment, by section 161 of the [Act No. 55 of 1958](/akn/ng/act/1958/55), can be imposed on summary conviction or on conviction on indictment. The nature of an offence which by or under a statute is punishable on summary conviction or on conviction on indictment was considered by the Court of Appeal in _Hastings_ _and_ _F_ _olkestone_ _G_ _lassworks_ _v._ _Kalson_ (1949) 1 K.B. 219; it was there decided that such an offence, being one which can be dealt with on indictment, is an indictable offence. On the authority of that case the charge against the accused was of an indictable offence; and by reason of section 304 of the Criminal Procedure Act the Magistrate could not try the accused summarily unless he elected to be so tried. The accused was not called upon to elect as required by section 304(2) and the trial was therefore a nullity. The proceedings including the conviction and sentence in the Magistrate's court are set aside. It is ordered that the accused be tried by a court of competent jurisdiction. The accused is allowed bail in £3,000 with one surety in the same sum or two in £1,500 each conditioned on his appearing before a magistrate and taking his trial.