The appellant appealed against convictions by a Senior Magistrate of unlawful possession of stolen property and of dangerous drugs; and against sentences of 2 years' imprisonment for each offence.

When the F.I.R. had been read and explained to him, the appellant admitted that the wrist watches and drugs had been found in his possession; and when some facts had been stated in court admitted "the facts as stated by the prosecutor." The trial magistrate then found the accused guilty on his own plea without hearing evidence or framing a charge.

HELD:

(1)     Sections 156 and 157 of the CPC only permit conviction without hearing evidence or framing a charge if-

(a) the particulars of the offence are stated to the accused;

(b) the accused is asked if he has any cause to show why he should not be convicted;

(c) the accused admits that he has committed the offence; and

(d) shows no sufficient cause why he should not be convicted.

(2)     The omission to ask the appellant to show cause and the absence of a clear admission by the appellant that he had committed either offence constituted failures to comply with the above conditions and amounted to a failure of justice;

(3)     Power to impose sentences in relation to convictions under Sections 156 and 157 of the CPC is restricted by the Criminal Procedure (Punishment on Summary Conviction Order, 1966.)

Appeal allowed: convictions set aside: Retrial ordered.

Acts referred to:

Criminal Procedure Code, Sections 156 & 157

Penal Code, Section 317

Pharmacy Law, Section 59

Order referred to:

Criminal Procedure Order, 1966 (NNLN 62/66)

APPEAL from Magistrates' Court

Odugbesan, for Appellant

Odoma, for Respondent

Bate, C.B.E. S.P.J., Jones, J.:-The appellant was convicted by a Senior Magistrate under section 317 of the Penal Code of unlawful possession of stolen property; and under section 59 of the Pharmacy Law of unlawful possession of dangerous drugs. For each offence he was sentenced to two years' imprisonment. He has appealed against convictions and sentences.

The record, which is very brief, runs as follows: "Accused person present in court. F.I.R. (1) Being in unlawful possession of stolen property contrary to section 317 of the Penal Code.

(2)     Being in unlawful possession of dangerous drugs contrary to section 59 of the Pharmacy Law read over and explained to the accused who said:-

Count (1) It is true that the wrist watches were found in my possession.

(2)     It is true that the drugs were found in my possession.

The case was then twice adjourned. On the second adjournment the record shows the prosecutor and the appellant to have been present and then proceeds to set out what are labelled in the record as "Facts". Who described these facts is not stated in the record but it might reasonably be inferred that it was the prosecutor. A number of documents and other objects were exhibited to the court. At the end of this the appellant is recorded as having said, "I admit the facts as stated by the prosecutor. They were found with me. Entered as a plea of guilty." The verdict is then recorded in the following terms, "I find the accused guilty on his own plea and I convict him."

Mr Odugbesan who appears for the appellant complains that the record does not show that the particulars of either offence were explained or sufficiently explained to him and in particular that the element of guilty knowledge was not much clear; that the appellant did not admit that he had committed either offence; that he was not called upon as is required by section 157 of the CPC to show cause why he should not be convicted; and that in these particulars the learned Senior Magistrate acted in breach of sections 156 and 157 of the Criminal Procedure Code.

The learned Senior State Counsel who represents the respondent concedes that the sentences are excessive and that the charge of an offence contrary to section 59 of the Pharmacy Law is defective in that this Law contains no such section. He suggests that the learned Senior Magistrate may have been referring to the Pharmacy Act. He agrees with Mr Odugbesan that the trial Magistrate purports to have applied sections 156 and 157 of the CPC but submits that the appellant was properly convicted in accordance with the procedure set out in those sections.

Sections 156 and 157 provides a procedure whereby a person brought before a court upon a First Information Report may be convicted without hearing evidence or framing a charge if certain conditions are satisfied. Those conditions are:-

(i) that the particulars of the offence must be stated to the accused;

(ii) that the accused is asked if he has any cause to show why he should not be convicted;

(iii) that the accused admits that he has committed the offence; and

(iv) show no sufficient cause why he should not be convicted.

In the present case the record includes the trial Magistrate's assurance that the offences stated in the FIR were read over and explained to the appellant. But there is nothing on record to show expressly or by necessary implication that the appellant was asked to show cause. Nor can we say that the record shows that the appellant admitted the offences or either of them; he is merely recorded as admitting that the goods, the subject of the charges, were found in his possession and as admitting the facts as stated by the prosecutor. But with regard to the charge under section 317 there is no admission, express or implied, that he acted dishonestly or knew or had reason to know that the goods were stolen property. And assuming the other charge to have been properly framed under section 35 of the Pharmacy Law or section 59 of the Act, there is no admission of criminal intent. For the respondent it was submitted that the appellant's admission of guilt was so clear that it was unnecessary for the trial Court to call upon him to show cause why he should not be convicted. We are unable to agree with this. There was, in our view, no such clear admission of guilt; and, even if there had been, it would not have excused the trial Court from complying with the requirements of sections 156 and 157. Consequently we cannot say that the conditions of sections156 and 157 have been satisfied.

We would not allow this appeal if the failure to observe these conditions amounted to no more than a technical irregularity and had not occasioned a failure of justice. But in this case we think that there was a failure of justice in that the appellant never clearly admitted the offences or either of them; and, in addition, was not given his statutory right to defend himself. It was not enough that the appellant admitted possession of the goods the subject of the charges and the facts stated by the prosecutor. His possession might have been innocent and he should have been given the opportunity provided by section 156 to say so or show some other cause why he should not be convicted.

For the foregoing reasons the appeal against both convictions is allowed. The convictions are set aside.

The sentences are beyond the trial Magistrate's powers when the procedure under section 157 of the CPC is used. By reason of the Criminal Procedure (Punishment on Summary Conviction) Order, 1966 (NNLN 62/66) the maximum sentence which a Magistrate of his grade could award is one year's imprisonment.

We think that there ought in the interest of justice to be a retrial before another magistrate. We, therefore, order a retrial before the Chief Magistrate, and direct that his shall take place with the least possible delay.

Appeal allowed. Convictions set aside. Retrial ordered