BAKARE V. I. G. P.

• Pages: 41-44

BAKARE V. I. G. P.

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BAKARE V. I. G. P.

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ABU BAKARE

V

10 INSPECTOR GENERAL OF POLICE

SUPREME COURT OF NIGERIA

APPELLANT

RESPONDENT

SUIT NO. SC 276/1966

ADEMOLA,

BRETT,

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AJEGBO,

COKER,

LEWIS,

3rd February, 1967

C.J.N.

J . S. C.

J.S.C.

J.S.C.

J.S.C.

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Criminal Law and Procedure - High Court of Lagos Act, (C.80), ss.36(2) and

40(a)(ii),

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- Criminal Appeals to High Court from Magistrates Court - Power

on appeal distinct from powers on review - No power to appeal to (a) annul

and substitute conviction or (b) quash conviction without making consequential

order.

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ISSUES:

1.

Whether section 36 of the High Court of Lagos Act is applicable where the judge

is not exercising his powers of review but sitting as an appellate court.

2.

Whether section 40(3)(a)(iii) of the High Court Act gives the High Court power

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to annul a conviction before altering the finding.

FACTS:

The appellant was charged before the Acting Chief Magistrate Lagos, on two

counts, namely:-

1. Unlawful carnal knowledge contra section 357 of the Criminal Code, and

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2. Unlawful and indecent assault contra section 360 Criminal Code.

The Magistrate convicted the appellant of attempted rape under the count for

the full offence but acquitted him on the second count, of indecent assault, on the

ground that the evidence was the same for both counts.

The appellant appealed to the High Court where the learned Chief Judge found

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that on the evidence before the Magistrate it was clear that penetration had been

proved and that the appellant should have been convicted of the full offence.

Referring to the powers vested in him under section 36(2) of the High Court of

Lagos Act, he made the following order:-

"I annul the conviction and convict the appellant of rape. The sentence will,

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however, stand."

Section 36(2) of the High Court Act confers on the Chief Justice and other

judges certain powers of revision over decisions of Magistrates in criminal cases.

Section 40 of the same act prescribes the powers of the High Court on appeals

from Magistrates in criminal cases.

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On the appellant's further appeal, the Supreme Court considered the question

whether, assuming that the judge referred to section 36 in mistake for section 40,

his order came within any of the provisions of the latter section.