FEDERAL SUPREME COURT OF NIGERIA
Friday, June 22, 1962
Before Their Lordships
ADEMOLA, CHIEF JUSTICE, NIGERIA
BAIRAMIAN, JUSTICE OF THE FEDERATION
TAYLOR, JUSTICE OF THE FEDERATION
1. ALBERT E. NWOBU
2. JAPHET MORDI
COMMISSIONER OF POLICE
The appellants, who were employees of the West African Airways Corporation at Kano, were convicted on summary trial by consent, the first of stealing a box of gold worth about £7,000 from an aeroplane in transit, and the second of receiving the box knowing it to have been stolen. The trial magistrate imposed the longest term he could within his jurisdiction-two years on each.
Both appealed against conviction, but without success. After dismissing the appeals, the High Court, being of opinion that the sentence was inadequate to the offence, invited argument on the question whether it was not possible to increase the sentence, having regard to the provision in section 48 of the Northern Region High Court Law, 1955, which empowers the High Court (in paragraph (a) (ii)), on appeal against conviction by a magistrate, to-
“alter the finding, maintaining the sentence or, with or without altering the finding, reduce or increase the sentence.”
For the appellants the argument was that, if the Court could increase the sentence, it had no power to increase sentence beyond the term which the magistrate could have imposed. The High Court pointed out that in appeals from Native Courts, section 70 (1) (b) (iii) of the Native Courts Law expressly limited the High Court to making an order which the trial court could have made; also that in appeals from the High Court as a court of trial, there was no power to interfere with the sentence on dismissal of an appeal against conviction; but that in an appeal from a magistrate against conviction, section 48 of the High Court Law empowered the Court to increase the sentence but imposed no limit on the power conferred. The Court held that there was nothing in section 48 to prevent the imposing of a sentence legal under the section charged but in excess of the trial magistrate’s jurisdiction, and increased the term of the first appellant to five years and that of the second to three.
We declined to give them leave to appeal against conviction, but assigned counsel to argue for them their complaint against the increase of sentence.
The argument for them is that, although the offences charged were such that the magistrate could have held a preliminary inquiry and committed them to the High Court for trial, where they could have been punished more heavily, he did not do that but tried them summarily; that the extent of punishment in the magistrate’s court could be no more than he could have imposed upon summary conviction; and that the High Court could not exceed that limit on appeal from what was a summary conviction.
The provision in section 48 empowers the High Court to increase the sentence, and imposes no express limitation. It does not say that the increased sentence must not exceed the maximum which the offence carried; but the High Court, rightly, of course, recognised that limitation, and read it into the provision. There are reasons why the other limitation should also be accepted.
When a magistrate with powers up to two years tries a person summarily for an offence which carried more, he does so because he considers that two years would be enough in that person’s case, in the event of conviction. If, after conviction, the magistrate were to think that the convicted person ought to have more than two years and imposed a longer term, that person could complain on appeal against the illegality of the sentence, and the High Court would have to reduce it to two years at any rate. The course taken by the High Court in the present case means that the High Court may do something which it would have frowned upon if done by the magistrate for precisely the same reason, namely that of giving the accused an adequate sentence in the circumstances of the case.
In effect, the increasing the sentence beyond the magistrate’s powers means that in the High Court’s view he ought not to have tried the case summarily. That may have been so, but, with respect, we do not think that an appeal against conviction can be the means of rectifying the sort of mistake: if it could be, then the right of appeal would turn out to be a trap which in our opinion could not have been intended. We think that the power to increase sentence is subject to both limitations-(l) the maximum which the offence carries, and (2) the maximum which the trial magistrate could impose. That seems to have been the view taken over the years during which the provision in section 48 of the High Court Law has been in operation; it is an old provision which goes back to 1945 and earlier, and the fact that there is no reported decision on the point lends support to the view that the provision is subject to those two limitations.
It is not altogether possible to avoid frivolous appeals against conviction: if, for example, a person is convicted of an offence punishable with twelve months and sentenced to that term in full, he can appeal against conviction, frivolously perhaps, but without any risk of his sentence being increased. The position in the case of a person who consents to summary trial and is given the maximum that the magistrate can give, is that he can appeal against conviction without risk of more.
It occurs to us to add that the order made in an appeal is supposed to substitute, for an erroneous order made by the magistrate, the right order which he ought to have made; on principle, an order which, if made by him would have been illegal, cannot with propriety be directed to be entered in his records, at any rate not unless the law expressly authorises it to be done – which is not the case here.
The above considerations were not drawn to the notice of the learned judges who heard the appeal of the appellants. They are in our opinion cogent reasons for allowing the appeal against the increase of sentence. The following order is made:
The appeals against the order made on 5th August, 1961, by the High Court of the Northern Region in Appeal No. K/43CA/1961 brought by Albert E. Nwobu and Japhet Mordi, who were convicted by the Magistrate Grade 1 in case No. KA/450C/60 on 22nd March, 1961, are disallowed insofar as the appeals relate to the order affirming the conviction, but he appeals are allowed insofar as the order increases the terms of imprisonment for two years on each of the appellants imposed by the Magistrate, and those terms are restored.
Appeal against conviction dismissed; Appeal against sentence allowed.