IN THE MATTER OF SECTIONS 482 AND 484 OF THE CRIMINAL PROCEDURE ACT

and

IN THE MATTER OF AN APPLICATION BY G.B. OLOWU FOR A REVIEW OF THE ORDER OF MR. A.O. JACOBS, AG. SENIOR MAGISTRATE MADE ON THE 23RD DECEMBER 1970 UNDER SECTION 482 (3) (B) OF THE CRIMINAL PROCEDURE ACT

(1971) All N.L.R. 490

Division: High Court of Lagos

Date of Judgment: 31st May, 1971

Case Number: SUIT NO. M/214/1970

Before: Lambo J.

Application to review order of Magistrate.

HELD:

(1)     Section 484 of the Criminal Procedure Act under which the applicant moved the court for a review of the order of the Magistrate clearly vests the High Court with wide discretionary powers.

(2)     To make a peremptory demand for the surrender of a citizen, in answer to a useless warrant of arrest, in respect of a charge for which there is no prima facie evidence, is to attempt to encroach on the liberty of a subject which, under the Constitution, the court has a plain duty to safeguard and respect.

(3)     Where, as in this case, an application is made to a Magistrate for him to take evidence, before making his order, he has a duty under the Act to entertain such an application. His refusal to do so may result in great injustice being done to an applicant, who has neither the opportunity nor the means to apply to this Court for a review of the said order.

(4)     Had the Magistrate acceded to Counsel's request which, in the light of documents exhibited to the affidavit in support of the present application, was not made lightly and had proceeded to take evidence, it seemed doubtful if he could have found any offence established against the applicant to justify the making of an order under section 482(3) (b) of the Criminal Procedure Act.

(5)     Upon a review of the Magistrate order, the court was satisfied that the said order ought to be set aside, for, if the Magistrate had taken evidence, as he was requested to so do, he would have found that no prima facie case could be established to support the charge specified in the warrant of arrest.

Order of Magistrate set aside: Discharge of Applicant ordered.

APPLICATION to review order of Magistrate.

SUIT NO. M/214/1970.

Lardner for the Applicant.

Ayoade, State Counsel, for the Respondent.

Lambo, J.:-Pursuant to a warrant of arrest issued from the Kaduna Police Station on 23rd December, 1970, the applicant was arrested in Lagos on the 22nd January, 1971, and brought before a Lagos Senior Magistrate (A.O. Jacobs, Esq.) who released him on bail. The warrant alleged an offence of "criminal breach of trust and cheating" but did not disclose the section of the law under which the charge was laid. The signature to the warrant was illegible and the designation or rank of the officer who signed it was not stated. As the Magistrate was, perhaps, satisfied with the validity of the warrant, he proceeded to admit the applicant to bail, having ignored applicant's Counsel's request that evidence be taken in the matter. In admitting the applicant to bail, the Magistrate had acted within the provisions of section 482(3)(b) of the Criminal Procedure Act which provides that:-

"The Magistrate before whom the person is brought shall:-

(b)     where the offence charged is an offence in respect of which he may admit a person to bail, admit the person to bail, on such recognizance's as he thinks fit, on condition that the person appears at such time (not exceeding one month after the date of the order admitting him to bail) and at such place in the Region or part of the Federation in which the original warrant was issued as the magistrate specifies, to answer the charge or complaint or to be dealt with according to law."

But in turning down Counsel's request for him to take evidence, the learned Senior Magistrate probably overlooked the provisions of section 484(1) and (3) of the Act which deal with the "Review of Order of Magistrates": they are as follows:-

Subsection (1):-

"Where a person apprehended is dissatisfied with an order made under subsection (3) of section 482, or under subsection (1) of section 483, he may apply to judge of the High Court of the Region or part of the Federation in which he was apprehended for a review of the order and the judge may review the order."

Subsection (3):-

"The review of the order shall be by way of rehearing, and evidence in addition to, or in substitution for, the evidence given on the making of the order may be given on or in connection with the review."

Had the Magistrate acceded to Counsel's request which, in the light of documents exhibited to the affidavit in support of the present application, was not made lightly and had proceeded to take evidence, it looks to me doubtful if he could have found any offence established against the applicant to justify the making of an order under section 482(3)(b) of the Criminal Procedure Act. Paragraphs 7-10 of the applicant's affidavit show that in declining the request to take evidence, the Magistrate seemed to have acted in a somewhat cavalier manner, an unfortunate thing to do, where, as in this case, the liberty of the subject is concerned.

The alleged "criminal breach of trust and cheating" for which the warrant was issued, was stated by the applicant (and not denied by the Police) to be the result of a trading transaction between him and a firm known as Alhaji Babajo and Company of Zaria, in the North Central State. The transaction was about a contract, concluded in January 1970 in Lagos, for the sale of 10,000 bags of cement for which a total sum of £4, 125-0s-0d was paid by Messrs Alhaji Babajo and Company to the applicant in Lagos. The Company was also to take delivery of the goods in Lagos. When, however, the cement arrived, the exporters' local agents in Lagos, Messrs Misr (Nigeria) Limited sold the consignment to third parties without the applicant's knowledge and consent. In support of this, the applicant exhibited to his affidavit two documents (Exhibits A & B) exchanged between his Solicitors and those of the agents. In Exhibit A, the applicant claimed Damages from the Agents and threatened to commence proceedings against them for breach of contract; the Agents in Exhibit B resisted the claim contending that the applicant failed to open an Irrevocable Letter of Credit as per agreement. There followed Exhibit D, a letter of the 3rd July, 1970, from Messrs Vigo & Co., Solicitors to Messrs Alhaji Babajo and Company, in which repayment of the deposit was demanded from the applicant. Exhibit E, dated 3rd September 1969, is a bank guarantee for the sum of £50,000 given to Messrs Misr (Nigeria) Limited at the instance of the applicant for the shipment of the cement.

Two sets of Motion papers together with the exhibits in this case were served in Kaduna on the Commissioner of Police and the Officer-in-charge of the Central Police Station. The service was effected on the 6th January, 1971, by a special messenger, sent from Lagos by the Solicitors to the applicant. Both the Commissioner of Police and the Officer-in-charge of the Central Police Station, at the instance of either or both of whom the warrant of arrest was issued, did not file, at any time, any counter affidavit challenging or denying any of the facts alleged in the affidavit in support of the application for a review of the Magistrate's order. So that the only facts in support of the application were those deposed to by the applicant.

In the course of the adjourned hearing of the Motion, Counsel for the applicant informed the court, on 22nd March, 1971, that the balance of money due to Messrs Alhaji Babajo & Co. had been paid and he produced a receipt signed by Mr Vigo, a Solicitor, to that effect. As I was, at that stage, satisfied by the evidence that no "prima facie" case for "criminal breach of trust and cheating" had been established, I adjourned further hearing for two weeks to enable the Police and their advisers to consider withdrawing the warrant.

When, however, the matter came up again on Monday the 24th May, a State Counsel, representing the Federal Director of Public Prosecutions, demanded, somewhat peremptorily, that the applicant be sent to Kaduna to stand his trial, and that, in the words of his instructing Solicitor-General of the North Central State, "there would be no compromise in the matter." The request was, of course, opposed by the learned Counsel for the applicant who, rightly, observed that none of the facts alleged in the affidavit had been challenged, and that there was no evidence before the court to support the demand.

It is to be noted that the law (Section 484 of the Criminal Procedure Act), under which the applicant moved the court for a review of the order of the Magistrate, clearly vests the High Court with wide discretionary powers: vide R. v. Brixton Prison (Governor) and another, Ex parte Enahoro, 1963 2 All E.R. 477. It is, however, disconcerting to note that with regard to these discretionary powers, both the State Counsel and his instructing Solicitors appear to be singularly uninformed. In my view, to make a peremptory demand for the surrender of a citizen, in answer to a useless warrant of arrest, in respect of a charge for which there is no "prima facie" evidence, is to attempt to encroach on the liberty of a subject which, under the Constitution, the court has a plain duty to safeguard and protect. Further, the very poor performance of the State Counsel from the office of the Director of Public Prosecutions makes me wonder if there still exists, in the country today, the Federal Department of Public Prosecutions.

The documentary evidence before the court, which was in no way challenged, proves the existence of a contractual relationship between the applicant and Messrs Alhaji Babajo & Company of Zaria. The inability of the Federal Director of Public Prosecutions and the Solicitor-General (North Central State) to appreciate this fact is, I regret to say, a sad reflection on their professional competence; for, otherwise, they would not have insisted on an innocent citizen being surrendered to the Police to face the ordeal of a criminal prosecution for an offence which the evidence did not disclose. I think, in this case, the Kaduna Police had unwittingly allowed their criminal jurisdiction to be used as a weapon for enforcing a civil claim. The Police are not debt collectors for individuals and should, therefore, be wary of those who attempt to use them as such. The firm of Alhaji Babajo and Company should have been plainly told to seek redress for the return of their money in a civil Court, or consult a Solicitor for advice in the matter.

In my judgment where, as in this case, an application is made to a Magistrate for him to take evidence, before making his order, he has a duty under the Act to entertain such application. His refusal to do so may result in great injustice being done to an applicant, who has neither the opportunity nor the means to apply to this Court for a review of the said order.

It is provided under Section 484(4)(b)(iii) as follows:-"

Upon the review of an order the judge may-

...

(b)     if it appears to him that-

...

...

(iii)    for any reason it would be unjust or oppressive to return the person either at all or until the expiration of a certain period, order the discharge of the person..."

I am satisfied that, upon a review of the Magistrate's order, the said order ought to be set aside, for, in my view, if the Magistrate had taken evidence, as he was requested so to do, he would have found that no "prima facie" case could be established to support the charge specified in the warrant of arrest.