On the 22nd April, 1969, the following letter was sent to the Chief Magistrate, Lagos by Counsel:-"Sir,

Enclosed please find my application supported by an affidavit for a criminal summons against the defendants mentioned therein.

May I with respect invite your Worship's attention to Section 83 of the Criminal Procedure Act which requires not less than 48 hours after service of the summons before the appearance of the defendants in Court.

This application is made pursuant to Section 81 of the Criminal Procedure Act.

Yours faithfully,

M.A. Phillips

For Chief F.R.A. Williams"

The "application" which was supported by an affidavit was not in fact an application but was a summons and at the head of the Summons the court found the complainant was Joseph Adu. It read inter, alia, as follows:-

"Complaint has been made this day by Joseph Adu for that you between 5th day of July, 1968 and 24th day of April, 1969, at Ilado did retake possession of land from Chief Yesufu Abiodun who on 31st day of January, 1968, obtained possession of the aforesaid land from you by a writ of Court.

You are, therefore, hereby summoned to appear before the Magistrates' Court sitting at Court No. 1, Igbosere Road, Lagos, on the 20th day of June, 1969, at the hour of 9 am. in the forenoon to answer to the said complaint.

Dated this 14th day of June, 1969.

Chief Magistrate."

A counter affidavit was sworn to by the defendant/appellant denying the material allegation in the affidavit attached to the application.

When the case came up for hearing application was made to withdraw against some of the defendants leaving only the 1st, 2nd and 8th accused. The appellant was the 1st defendant in the proceedings. At the close of the case for the prosecution a no case submission was made and upheld in respect of the other defendants except present appellant. He was eventually found guilty. The defendant/appellant appealed to the High Court. On the ground that (1) the charge as laid was not proper, and (2) that the court below should have satisfied itself of the area of land relating to the charge.

HELD:

(1)     Section 79 of the C.P.A. provides that a Magistrate may issue a summons or warrant as hereinafter provided to compel the appearance before him of any person accused of having committed in any place, whether within or without Nigeria, any offence triable in the Region."

(2)     Under Section 81 of the C.P.A. the magistrate is required to adjudicate on the application and decide whether in the exercise of this discretion he will or will not issue a summons or warrant. If he decides to refuse the application he should so record his reasons for the refusal. This is a matter on which the Magistrate is enjoyed by law to exercise his discretion.

(3)     Where a Court of trial is given a discretion to exercise it must be apparent on the face of the record that the court was aware of this power and being aware of it took the step it took in exercise of such power.

(4)     There was nothing in the record to show (1) that the Magistrate adjudicated on the complaint as was required by sections 79, 80 and 81 of the Act. (2) that a summons issued from the court to compel the appearance of the defendants as required and in accordance with section 87. These two requirements are matters precedent to the exercise of jurisdiction by the Magistrates' Court.

(5)     There was no indication on the record that the trial Magistrate ever visited the scene in order to see for himself whether in fact the alleged contempt of Court was committed for it must be borne in mind that the judgment for possession was not one emanating from a Magistrates' Court but from the High Court on Appeal to the Supreme Court.

(6)     In view of the fact that the other defendants have been discharged it was even more imperative that the court of trial should have been made aware of the particular land in the occupation of the appellant and which he was alleged to have repossessed.

(7)     The trial Magistrate would seem to have been unaware, when he wrongly over-ruled the submission of the appellant, that there was a vast difference between repossession and mere entry on the land. The witness merely said he saw the appellant on the land. The judgment did not forbid the appellant from visiting any one on the land or from going on the land. It ordered him to give up possession. Mere going on the land was not an act of possession or repossession of the land and more so where no evidence was led as to the particular area of land or on the identity of the particular area of land in respect of which the order was made in IK.263/65. That it was in Ilado is not sufficient.

(8)     In civil proceedings where an injunction is granted in respect of acts of trespass over land the area of land must be stated in the judgment with such clarity as to enable the person against whom the injunction is granted to know the area. In Criminal proceedings brought against an accused for any wrongful act done in relation to land, particularly where there have been previous civil proceedings in which the alleged wrongdoer claimed a right, interest or title to such land, the identity of the land must be proved. Neither in the evidence of the complainant and his witnesses nor in that of the appellant was this proved.

For these reasons the appeal must be allowed.

Appeal allowed. Judgment of lower Court set aside: Judgment of not guilty and discharged substituted.

Act referred to:

Criminal Procedure Act Sections 79, 80, 81, 83, 87.

APPEAL from Magistrates' Court

Ashimi, for the Defendant/Appellant.

Oluwole, for the Complainant/Respondent

Taylor, C.J.:-On the 22nd April, 1969, the following letter was sent to the Chief Magistrate, Igbosere Court, Lagos, by learned Counsel in the Chambers of Chief F.R.A. Williams as follows:-

"Sir,

Enclosed please find my application supported by an affidavit for a criminal summons against the defendants mentioned therein.

May I with respect invite your Worship's attention to Section 83 of the Criminal Procedure Act which requires not less than 48 hours after service of the summons before the appearance of the defendants in Court.

This application is made pursuant to Section 81 of the Criminal Procedure Act.

Yours faithfully,

M.A. Phillips

For Chief F.R.A. Williams."

The affidavit was one sworn to by Joseph Adu on the 24th April, 1969, although the applicant is on the heading of the affidavit said to be, "The Oniru of Lagos". The first paragraph of the affidavit describes the deponent as the Secretary to the Iru Chieftaincy Family and the Keeper of all their records, and the second paragraph states that he has the authority of Chief Oniru to swear to the affidavit.

"The application" which is supported by the affidavit to which I have just referred is not in fact an application but is a summons and at the head of the summons we find the complainant in Joseph Adu as against the affidavit which describes Chief Oniru of Lagos as the applicant. It reads, inter alias, as follows:-

"Complaint has been made this day by Joseph Adu for that you between 5th day of July, 1968, and 24th day of April, 1969, at Ilado did retake possession of land from Chief Yesufu Abiodun who on 31st day of January, 1968, obtained possession of the aforesaid land from you by a writ of Court.

You are, therefore, hereby summoned to appear, before the Magistrates' Court sitting at Court No. 1, Igbosere Road, Lagos, on the 20th day of June, 1969, at the hour of 9 a.m. in the forenoon to answer to the said complaint.

Dated this 14th day of June, 1969.

Chief Magistrate"

There is no record of any proceedings on the 20th day of June, 1969, quite apart from the obvious mis-statement that "Complaint has been made this day", i.e., 14th June, 1969, when the complaint was made some two months before then. After this we find in the record of proceedings another complaint identically worded, but in which the dates of the alleged offence committed has been altered from "between 5th July, 1968, and 24th April, 1969" to "between 6th July, 1968, and 20th April, 1969." Further in the original complaint it is said that Chief Yesufu Abiodun obtained possession of the said land on the 31st January, 1968, but in the second complaint it is said he obtained possession on the 5th July, 1968. The complaint is dated the 21st H June, 1969, and the defendants are requested to appear in Court on the 11th July, 1969. The learned Chief Magistrate by his signature to the complaint which did not in fact emanate from him in the form of a summons as required by law to which I shall later draw attention, has unwittingly given his blessing to a procedure not contained in the Criminal Procedure Act.

On the same day as this last complaint was prepared, i.e., 21st June, 1969, though it had found its way to the Chief Magistrates' Office on the 19th June, 1969, we find a copy of the Statement of Offence, i.e., contempt of Court contrary to section 133(8) of the Criminal Code and the particulars of offence. It is signed by the solicitor to the complainant. In the particulars of offence we find a third variation as to when the defendants are alleged to have retaken possession. It is not between 5th July, 1968, and 24th April, 1969, as originally alleged, nor between 6th July, 1968, and 20th April, 1969, as contained in the second complaint but is now between the 6th July, 1968 and the 21st July, 1969, oblivious of the date inserted at the bottom of the charge being 21st June, 1969.

A counter-affidavit was sworn to on the 9th July, 1969, by the 1st defendant denying the material allegation in the affidavit attached to the application.

The matter was brought before the court on the 11th July, 1969, as contained in the second complaint. On that day learned Counsel for the defence is recorded as saying, inter alia, that:-

"...as regards the 1st, 4th and 8th accused persons who had been served with the summons, he will raise a preliminary objection that the summons is not proper."

On that day and on the following adjourned day, application was made to withdraw against some of the defendants leaving only the 1st, 2nd and 8th accused. The appellant was the 1st defendant in the proceedings. The case proceeded to hearing on the next adjourned date without the preliminary objection being heard. At the close of the case for the prosecution a no case submission was made and upheld in respect of the other defendants except the present appellant. He then gave evidence and at the close was found guilty and sentenced to two month i.h.l.

In fairness to the learned Counsel for the appellant it should perhaps be recorded here that during his address at the close of the hearing in the court below he did submit that the charge as laid was fundamentally bad and made reference to section 78(b) of the C.P.A. and several other sections of the Act. The learned trial Magistrate, however, found that sections 166, 167 and 101 of the C.P.A. were answers to the objection raised.

Mr Ashimi has for and on behalf of the appellant filed in his ground of appeal a challenge to the charge filed against the accused on the ground that it is not proper. It is provided in section 59(1) of the C.P.A., inter alia, that:-

"Any person may make a complaint against any other person alleged to have committed or to be committing an offence, unless it appears from the enactment on which the complaint is founded that any complaint for such offence shall be made only by a particular person..."

Taking it for granted that an offence under section 133(8), which comes under Part XIV dealing with "offences relating to the Administration of Justice, is one in which a complaint can be made by any person, we then have to consider the manner in which proceedings are instituted under section 78. This section provides thus:-

"Where proceedings are instituted in a Magistrates' Court they may be instituted in either of the following ways:-

(a)     Upon complaint to the court, whether or not on oath, that an offence has been committed by any person whose presence the Magistrate has power to compel, and an application to such Magistrate, in the manner hereinafter set forth for the issue of either a summons directed to, or a warrant of arrest to apprehend, such person."

There can be no doubt that this part of the Act was complied with in that such an application was in fact made to the Magistrate for the issue of a summons. There is therefore, no need to deal with section 78(b) which is the other alternative method, and which is, therefore, not applicable to this case. But that is not all for section 79 then provides that:-

"A Magistrate may issue a summons or warrant as hereinafter provided to compel the appearance before him of any person accused of having committed in any place, whether within or without Nigeria, any offence triable in the Region."

Section 80 then goes on to say the court may "in every case proceed either by way of summons or by way of warrant." The court below is given a discretion in section 81 as to whether it will issue the summons or not. It may refuse to do so in which case it should record its reasons for so doing. Section 81 is in my view most important in the sense that the Magistrate is required to adjudicate on the application and decide whether in the exercise of this discretion he will or will not issue a summons or warrant. As I said if he decides to refuse the application he should so record his reasons for the refusal.

As I have shown, the application of the 22nd April, 1969, to the Chief magistrate was an ex parte one. There is nothing in the application to show that a copy was ever served on the party against whom the complaint was being made. That this is a matter on which the magistrate is enjoined by law to exercise his discretion is further shown by the provisions of section 86 of the C.P.A. which provides that:-

"Nothing contained in dections 83, 84 or 85 shall oblige any Magistrate to issue any such summons in any case where the application for an order may by law be made ex parte."

This again is further shown by section 83 which provides, inter alia, that:-

"Where upon a complaint being made before a Magistrate, as provided in section 81 and the Magistrate decides to issue a summons in the first instance such magistrate shall issue a summons directed to the person complained against stating concisely..."

There is nothing in the record to show (1) that the Magistrate adjudicated on the complaint as is required by sections 79, 80 and 81 of the Act (2) that a summons issued from the court to compel the appearance of the defendants as required and in accordance with section 87. These two requirements are matters precedent to the exercise of jurisdiction by the Magistrate's Court. and I have endeavoured to set this out in full in order that it might be a guidance to Magistrates in future in proceedings brought by an individual which are not too frequent in our Courts. The answer to these objections is certainly not section 166 and 167 of the C.P.A. I am not in this judgment prepared to hold that section 101 is or is not an answer without hearing Counsel fully on the matter. The Appeal Court was held, in a case on which I am unable to lay my hand, that where a court of trial is given a discretion to exercise it must be apparent on the face of the record that the court was aware of this power and being aware of it took the step it took in exercise of such power. It is because of this, which would go to the very basis of jurisdiction, that I have grave doubts as to whether section 101 of the C.P.A. cures it.

Be that as it may this appeal can and will be decided on other grounds argued at the trial. The second additional ground argued is that the court below should have satisfied itself of the area of land relating to the charge. The particulars of offence state that the land in dispute "is a piece of land at Ilado near Maroko", and the affidavit states that in Suit No. IK/263/65 judgment was obtained by the plaintiff Chief Yesufu Abiodun. No plan of this area of land was tendered throughout the proceedings. No plan was tendered to show the area in respect of which the defendants are alleged to have taken possession. Different considerations prevail in the case of a house in which the number and the street would give a clear and concise indication as to where the same is situated. There is no indication as to where the same is situated. There is no indication on record that the learned trial Magistrate ever visited the scene in order to see for himself whether in fact the alleged contempt of Court was committed, for it must be borne in mind that the judgment for possession was not one emanating from a Magistrates' Court, but from the High Court on Appeal to the Supreme Court. Then again it must be borne in mind as can be seen from the judgment tendered, i.e., IK/263/65 exhibit A1 there were nine defendants and the following position is contained in the first page of this exhibit:-

"The land in dispute is hereinafter referred to simply as "the land"

I set out hereunder paragraphs 1, 2, 3 and 6 of the plaintiff's statement of claim

(1.)

(2.)    The defendants all live in Ilado and each of them is in occupation of a piece of land there

(3.)    The land so occupied by the defendants severally is part of all the piece or parcel of land at Ilado          "

In view of the fact that the other defendants have been discharged it was even more imperative that the court of trial should have been made aware of the particular land in the occupation of the appellant and which he is alleged to have repossessed.