Lagos, 4th November, 1936.

                          Cor. KINGDON, PETRIDES and WEBBER, C.J J

Accra, 13th November, 1936.

Cor. KINGDON, PETRIDES and WEBBER, c.JJ.

OTUMFUO NANA OSEI AGYEMAN PREMPEH II ..

       ............................... ComPlainant-Respondent.

v.

                                                   O. S. AGYEMAN   

E. C. BOBIEH-ANSAH AKUFFO DAMPARE AND ATTA KWADJO ALIAS ATTA

BOAMAN

ConsPiracy, etc., against Native Authority contra Section 12 (1) of the Native Authority Ordinance, 1935, of Ashanti (No. :t of 1935)­Summary trial of charges, after preliminary objection to jurisdic­tion overruled, results in convictions.

Held: Trial Judge had no jurisdiction to try these charges summarily. Appeal

allowed and judgment and verdict of acquittal entered.

There is no necessity to set out the facts of this case.

Frans Dove (with him K. A. Bossman) for the Appellants.

K. A. Korsah (with him E. O. Asafu-Adjaye) for the Respondent.

The following judgment was delivered :-

KINGDON, C.J., NIGERIA.

In this case the appellants were brought before a Judge of the Supreme Court at Kumasi upon a summons, and their case was dealt with summarily by the Judge after he had considered and over­ruled an objection to his jurisdiction taken on their behalf. They were each charged with two offences contrary to section 12 (1) of the Native Authority Ordinance, 1935, of Ashanti (No.1 of 1935); they were all convicted of both offences and were sentenced, the first three to imprisonment with hard labour for six months on each charge and the fourth to imprisonment with hard labour for three months on each charge, all sentences to run concurrently.

Section 12 of the Ordinance in question reads as follows :-

.• 12. (I) Any person who conspires against or in any manner attempts to undermine the lawful power and authority of any native authority shall be guilty of an offence and shall be liable on conviction thereof to a fine not exceeding one hundred pounds or to imprisonment with or without hard. labour for one year, or to both such fine and imprisonment and shall be liable to be removed from Ashanti or into any part of Ashanti outside the area of such native authority's jurisdiction .

.. (2) No order of removal made under this section shall be enforced until confirmed by the Governor who may vary it before confirming it .

.• (3) Except in so far as the Governor may by order otherwise direct, no proceedings shall be taken for an offence against this section without the consent of the Governor.

 

 

97

Appeal Court. 13 Nov., 1936.

Appeal from Summary Convictions by Supreme Court.

98

Otumfuo

N ana Osei Agyeman Prempeh II

v.

Agyeman & Ors.

Kingdon, C.J.

 

 

Otumfuo Nana Osei Agyeman Prempeh II v. Agyeman 0- Ors.

•• (4) Except with the permission of the Governor no Native Court at no District Commissioner's Court shall have jurisdiction to try an offen, against this section."

The consent of the Governor was duly given to proceedings bein taken under sub-section (3), but there was no pennission grante under sub-section (4).

Upon appeal to this Court objection has again been raised to th jurisdiction of the trial Judge, and the first point we have to decid is whether or not he had jurisdiction to try these offences sum marily.

The summary jurisdiction of a Judge of the Supreme Court iJ criminal matters is laid down in section 149 of the Criminal Pro cedure Code in the following tenns:-

•• 149. Every Judge shall have jurisdiction to try summarily, subjec to the conditions laid down in this part, any offence which may under art: ordinance for the time being in force be heard and determined summaril before a Magistrate, such offence appearing to the Judge to be of such nature that if proved it would be adequately punished by fine, or by imprison ment not exceeding six months, or by both."

And in view of the provisions of section 167 of the same Code whie! reads :-

•• 167. Whenever any charge has been brought against any person of ai offence not triable by a Magistrate's Court or as to which the Magistrate'j Court is of opinion that it is not suitable to be disposed of upon summaI"l trial, a preliminary inquiry shall be held according to the provisions hereirl after contained by a Magistrate's Court, locally and otherwise competent and such Magistrate's Court shall have power to commit such person for tri~ to the supreme Court or discharge him according to the provisions of thi part, "

we are of opinion that the summary jurisdiction of a Judge is limited to the four corners of section 149 above quoted.

It is therefore necessary to ascertain what offences may bJ heard and detennined summarily before a Magistrate. The jurisdic! tion of Magistrates is defined in section 43 of the Courts Ordinancel 1935, and the material part is as follows :-

•• 43. (1) Every District Magistrate and Provincial Commissioner sitting

         as a District Magistrate shall havE.' jurisdiction to hear and determine:    I

•• (a) All offences punishable under any Ordinance by fine not exceeding one hundred pounds or imprisonment for twelve months."

It is specially to be noted that- in paragraph (a) the words are " by fine not exceeding one hundred pounds or imprisonment fo~ twelve months." The words" or by both" do not follow at the end! and on this point the paragraph differs from the next paragraph (b)! where the words" or with both" are to be found.

Now under section 12 (1) of the Ashanti Ordinance alreadYj quoted the offence is punishable by both fine of £100 and imprison­ment for one year. It is clear therefore that the offence is not witlilil the category of those which a Magistrate has jurisdiction to hear! Nor can we subscribe to the proposition that section 178 of thJ