The appellant was tried summarily without being called upon to elect as required by section 304(2) of the Criminal Procedure Act. The offence charged carries a punishment of two years imprisonment and a fine which can be imposed either on summary conviction or on conviction on indictment. On appeal against conviction and sentence, the appellant contended that the trial was a nullity.

HELD:

An offence which by or under a statute is punishable on summary conviction or on conviction on indictment ought to be dealt with as an indictable offence, and since the accused person was not called upon to elect as required by section 304(2) of the Criminal Procedure Act, the conviction and sentence in the Magistrate's Court ought to be set aside.

Appeal allowed.

Case referred to:-

Hastings and Folkestone Glassworks v. Kalson (1949) 1 KB. 219

Acts referred to:-

Criminal Procedure Act, Cap. 43 section 304(2).

Customs and Excise Management Act, No. SS of 1958, section 161.

Lardner, for the Appellant.

Ogundere, for the Respondent.

Onyeama, Ag. C. J. of Lagos:-One of the grounds of appeal is that the trial was a nullity. If this ground is upheld it will be unnecessary to consider the other grounds since there would in law have been no trial.

The offence charged carried a punishment of two years imprisonment and a fine, which punishment, by section 161 of the Act No. 55 of 1958, can be imposed on summary conviction or on conviction on indictment.

The nature of an offence which by or under a statute is punishable on summary conviction or on conviction on indictment was considered by the Court of Appeal in Hastings and Folkestone Glassworks v. Kalson (1949) 1 K.B. 219; it was there decided that such an offence, being one which can be dealt with on indictment, is an indictable offence.

On the authority of that case the charge against the accused was of an indictable offence; and by reason of section 304 of the Criminal Procedure Act the Magistrate could not try the accused summarily unless he elected to be so tried.

The accused was not called upon to elect as required by section 304(2) and the trial was therefore a nullity.

The proceedings including the conviction and sentence in the Magistrate's court are set aside.

It is ordered that the accused be tried by a court of competent jurisdiction.

The accused is allowed bail in £3,000 with one surety in the same sum or two in £1,500 each conditioned on his appearing before a magistrate and taking his trial.