HELD:

(1)     The summary procedure provided by the Criminal Procedure Code, ss. 156 and 157, is, as a general rule, inappropriate to the disposal of charges of grave crime.

(2)     If the summary procedure provided in ss. 156 and 157 is used, it must be followed strictly.

(3)     The summary procedure is inappropriate to the disposal of charges under the Indian Hemp Decree, 1966 which imposes heavy minimum sentences, owing to the restriction on sentences imposed by the Criminal Procedure (Punishment on Summary Conviction) order 1966.

Appeal allowed: Conviction and sentence set aside: Retrial Ordered.

Case referred to:

Masialihu Halilu v. Commissioner of Police, (1970) unreported, Makurdi MD/18CA/1970.

APPEAL from the Magistrate's Court.

SUIT NO. MD/17CA/1971.

Chukwuma for the Appellant.

Igboka for the Respondent.

Bate, S.P.J., Kawu, Ag. J.:-The appellant appeals against his conviction of possession of Indian hemp contrary to the Indian Hemp Decree. His ground of appeal is that, although he was convicted under the summary Procedure in ss. 156 and 157 of the C.P.C., the requirement of this procedure was not satisfied that he must be asked if he had any cause to why he should not be convicted.

For the State it is argued that there has been no failure of justice and that s. 288 of the C.P.C. should be invoked to dismiss the appeal.

The summary procedure provided by ss. 156 and 157 is, as a general rule, inappropriate to the disposal of accusations of grave crime such as the possession of Indian hemp which carries a fixed sentence of 10 years imprisonment. If it is used, it must be used properly and with due regard to the provisions safe-guarding the rights of the accused. In this case we agree that this was not done. The appellant was not asked to show cause; nor was it explained to him that an essential ingredient of the offence is that it must be done knowingly but that the burden of proving absence of guilty knowledge falls on the accused. His reply to the F.I.R. is consequently not a clear admission of guilt. It cannot be said that there has been no failure of justice.

Therefore for the reasons given in Maisalihu Halilu v. C. of P. (Unreported: Makurdi: MD/18CA/70) and the foregoing reasons the appeal must be allowed.

In addition, the s. 156 procedure is wholly inappropriate to hemp cases owing to the provision of the Criminal Procedure (Punishment on Summary conviction) Order, 1966.

The appeal is allowed and the conviction and sentence are set aside.

There will be a retrial without delay in the court of the Ag. Chief Magistrate, Makurdi.

Appeal allowed: Conviction and sentence set aside: Retrial ordered.