JAMES GBORUKO AND ANOTHER v COMMISSIONER OF POLICE (Criminal Appeal No. JD/3CA/1961) [1961] NGHC 14 (24 July 1961)

**JAMES** **G****BORUKO** **AND** **ANOTHER** **(A****PPELLANTS)** **_v._** **COM****MI****S****S****I****ON****E****R** **O****F** **P****O****L****IC****E** **(****R****E****SP****O****N****D****EN****T****)** **(****1****96****1****)** **N****.****N****.****L.****R****.** **1****7** **(1961)** **All** **N.L.R.** **564** **Div****i****si****o****n:** High Court (North) **D****at****e** **o****f** **Judgment:** 24th July, 1961 **C****as****e** **Num****b****er:** Criminal Appeal No. JD/3CA/1961 **Before:** Smith, S.P. J. Holden, J. Appeal from magistrate's court. The appellants were charged with an offence contrary to section 167 of the N.R. Penal Code and were tried summarily before a magistrate, Grade II. They were convicted and sentenced. The record disclosed that the magistrate was a magistrate of the second grade. On appeal it was contended by the appellants that a magistrate, Grade II, had no jurisdiction to try them for the offence charged and that the proceedings were therefore void. The respondent contended that the magistrate is presumed to have acted within his jurisdiction; and to refute that presumption the appellants must prove that he had not the jurisdiction exercised. **_HELD_**** _:_** (1) The presumption is that a magistrate possesses the jurisdiction which is conferred on him by his grade as disclosed on the record of the proceedings. The record discloses that the magistrate was of the second grade. As such, he had no jurisdiction to try the appellants for the offence charged, since the court with least powers which may try an offence against section 167 of the N.R. Penal Code is that of a magistrate of the First grade, under Appendix A. of the N.R. Criminal Procedure Code. (2) Conviction by a magistrate who has no jurisdiction over the offence charged is void. _A_ _ppea_ _l_ _allowed_ _._ _La_ _w_ _s_ _r_ _e_ _f_ _er_ _r_ _e_ _d_ _t_ _o_ _:__-_ _N.R_ _._ _Pe_ _n_ _a_ _l_ _C_ _od_ _e_ _,_ 1959, (_N.R._ _No_. 18 _of_ 1959), section 167. _N_ _.R_ _._ _Cr_ _i_ _min_ _a_ _l_ _P_ _roc_ _e_ _dur_ _e_ _C_ _o_ _de_ _,_ 1960, (_N.R._ _No_. 11 _of_ 1960), sections 19(1), 143, 147, 379(2), 380. APPEAL from magistrate's court. _Ezekwe_ for the Appellants. _Nasir_ , Senior Crown Counsel, for the Respondent. Smith, S.P.J., (delivering the Judgment of the court):-At the conclusion of the hearing of this appeal on 13th July, 1961 we allowed the appeal and now set out our reasons for doing so. The appellants were tried jointly before the magistrate, Grade II at Kafanchan. (After allowing the appeal on the first and second charges, the Judgment continued): As to the third charge, the charge of the offence contrary to section 167 of the Penal Code, Mr Ezekwe submitted that a magistrate of the Second grade had no jurisdiction to try this offence because Appendix A to the Criminal Procedure Code provides that a court with least powers which may try an offence contrary to section 167 of the Penal Code is that of a magistrate of the First grade. Mr Nasir submitted that it is to be presumed that the magistrate in this case acted within his jurisdiction; and to refute that presumption it must be proved that the magistrate did not have increased jurisdiction under section 19(1) of the Criminal Procedure Code. In our view the presumption is that the magistrate possesses the jurisdiction which is conferred on him by his grade as disclosed on the record of proceedings. In the present case the magistrate appears on the record of proceedings to be a magistrate of the Second grade and as such he had no jurisdiction to try an offence contrary to section 167 of the Penal Code. In the alternative Mr Nasir submitted if the magistrate exceeded his jurisdiction the proceedings are not to be set aside on that ground only as they came within section 379(_c_) of the Criminal Procedure Code. The relevant part of this section reads:- 379\. If any court ... not empowered by law to do any of the following things, namely:- (_c_) to take cognizance of an offence under section 143, erroneously in good faith does any such thing, the proceedings shall not be set aside merely on the ground that the court ... was not so empowered. Section 143 sets out the circumstances in which a court may take cognizance of an offence, that is to say the steps preliminary to the trial. Section 147 says what is to be done when a magistrate finds, _inter_ _alia,_ that he has taken cognizance of a case which he has no jurisdiction to try summarily: it reads:- 147\. If an offence of which a court takes cognizance ought properly to be inquired into or tried by another court or if in the opinion of the court taking cognizance thereof the offence might be more conveniently inquired into or tried by another court it shall send the case to such other court. There is thus the distinction between taking cognizance of a case and trying it. Where a magistrate tries a case which he has no jurisdiction to try, the section which applies is not section 379 but section 380. The relevant part of section 380 reads:- 380\. If any court ... not being empowered by law in this behalf, does any of the following things, namely:- (_h_) tries an offender; such proceedings shall be void. We hold that the magistrate, being of the Second grade, was not empowered to try summarily an offence contrary to section 167 of the Penal Code and that the conviction thereunder was void by virtue of section 380 of the Criminal Procedure Code. _A_ _ppea_ _l_ _allowed_ _._