Jihowu, Ag. C.]. The appellant was committed to prison for five days on the 21st June, 1954, for contempt of Court by Mr M. J. Hollis, Magistrate, Grade III of the Jos Magisterial District. He appealed against his committal to the Supreme Court of the Jos Judicial Division which dismissed his appeal on the 16th December, 1954, on the ground that the appeal did, not lie or on the ground that the point of law taken was unfounded.
From this decision the appellant has appealed to this Court.
The appellant was not represented and so could not argue the points of law involved as to (I) whether the learned Judge of the Supreme Court was wrong in holding that the appeal did not lie because the appellant had no right of appeal and (2) the propriety of the committal when no formal trial following a charge and arraignment was held. He, however, admitted that the Magistrate had power to commit for contempt of Court.
The record of appeal shows that the appellant was committed after he had been warned several times for a disrespectful conduct, continued interruptions and disturbances in the course of his trial for a motor offence.
The Magistrate concerned has jurisdiction in criminal matters and could impose fines up to £25 or imprisonment up to three months. His Court is a Court of Record and has, like other Courts of Record, an inherent power to fine and imprison people guilty of contempt of Court up to the limit of its jurisdiction. With regard to the question of the propriety of the committal in this case, it should be pointed out that there are two ways in which a person guilty of contempt of Court can be dealt with. The first way, when the contempt is, in legal parlance, in the face of the Court is for the Court to punish the offender in a summary manner without issuing a summons or trying the offender in a formal manner, and the second is to hold a formal trial as in ordinary criminal cases. These two forms of trial are recognised by our Criminal Code Ordinance. A reference to section 6 of the Criminal Code Ordinance at page 28 of Vol. II Laws of Nigeria bears this out. The section reads: “Nothing in this Ordinance or in the Code shall affect the authority of Courts of record to punish a person summarily for the offence commonly known as contempt of court; but so that a person cannot be so punished and also punished under the provisions of the Code for the same act or omission”.
Section 133 of the Criminal Code provides punishment for various forms of contempt of court. A prosecution under this section must be in due form of law. The accused person after appearing in Court must be arraigned with consequent trial resulting in a verdict. Herein lies the difference between a prosecution for contempt of court and a summary way of dealing with the same offence by the court. It was therefore not necessary for the Magistrate in this case to have gone through the usual procedure for a prosecution for contempt of Court.
The learned Judge on appeal was therefore right in dismissing the appeal of the appellant on the ground that the Magistrate did not follow the usual procedure of a trial after arraignment.
Mr Kazeem, Crown Counsel, who appeared for the respondent, submitted on behalf of the appellant that the learned Judge was wrong in dismissing the appellant's appeal on the ground that the appeal did not lie. In support of his contention he referred to section 5 of the Magistrates' Courts (Appeals) Ordinance and also to the decision of the Privy Council in Rex v. Joseph Orakwue Izuora, reported in 1953 W.L.R.700 and 1953 A.C. 327. He submitted that the Magistrate's decision was a conviction and that section 5 of the Magistrates' Courts (Appeals) Ordinance therefore gives the appellant a right of appeal because the Magistrate had deprived him of the opportunity of pleading to a charge by trying him summarily.
A right of appeal is a creation of statute and no such right exists where there is no provision for it in the stature or law creating rights of appeal. The law to be examined for rights of appeal from a Magistrate's decision is the Magistrates' Courts (Appeals) Ordinance, and in the case of an appeal from the decision of the Supreme Court the rights of appeal must be looked for in the West African Court of Appeal Ordinance. Section 5 of the Magistrates' Courts (Appeals) Ordinance deals with the former and section 10 of the West African Court of Appeal Ordinance deals with the latter. The relevant portion of section 5 of the Magistrates' Courts (Appeals) Ordinance reads as follows:-
Any person aggrieved by a conviction or order by a magistrate in a criminal case in respect of any charge to which he has pleaded not guilty or of which he did not admit the truth may appeal to the appeal court from such conviction.”
According to, the provisions of this section a person must have been convicted in a criminal case on a charge after he had pleaded not guilty to, or denied the truth of, the charge. Two elements are therefore necessary to confer a right of appeal under the section, namely (1) conviction in a criminal case and (2) a charge to which the accused has pleaded not guilty.
In this case on appeal, the first element is present, but not the second. It follows, therefore, that the appellant's case cannot be brought within the provisions of the section.
Section 6 of the Ordinance provides for a right of appeal against sentence only when it person has pleaded guilty to a criminal charge.
Section 7 of the Ordinance gives a right of appeal to the prosecutor against the acquittal of an accused person on a criminal charge, or the dismissal of a criminal charge, by a Magistrate.
Section 10 of the West African Court of Appeal Ordinance reads:
“A person convicted by or in the Supreme Court or a native court may appeal to the court of appeal-(a) against his conviction on any ground of appeal which involves a question of law alone; and (b) with the leave of the court of appeal, or upon the certificate of the Judge who tried him or, in the case of a person convicted by a native court, who heard his appeal to the Supreme Court, that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the court to be a sufficient ground of appeal”.
This section was construed by the Privy Council in the case of Rex v. Joseph Orakwue Izuora in which the West African Court of Appeal held that the defendant-appellant had no right of appeal from the decision of the Supreme Court, Benin, which fined him £10 or 2 months' imprisonment in default for an alleged contempt of Court. The Privy Council held that the governing word in the section is the word “conviction” and that, as the appellant had been fined with alternative punishment of two months' imprisonment in default of payment of the fine, there had been a conviction within the meaning of the word “conviction” in section 10 of the West African Court of Appeal Ordinance.
It is not disputed in this case that the appellant had been convicted by the Magistrate, Mr Hollis, and we would have upheld the learned Crown Counsel's submission that the appellant has a right of appeal under section 5 of the Magistrates' Courts (Appeals) Ordinance if the wording of the section and of section 10 of the West African Court of Appeal Ordinance have been identical; but the two sections are not identical in their provisions. Section 5 of the Magistates' Courts (Appeals) Ordinance gives a right of appeal in a case where the would be appellant has been convicted in a criminal case of a charge to which he has pleaded not guilty. It follows that if there has not been a charge to which the would be appellant has pleaded not I guilty, the section cannot avail him, whereas the provisions of section 10 of the West African Court of Appeal Ordinance are wider and do not limit the circumstances leading to the conviction as in section 5 of the Magistrates' Courts (Appeals) Ordinance.
The decision in Rex v. Joseph Orakwue Izuora cannot therefore be applied to Magistrates' Courts' decisions, and we therefore uphold the decision of the Supreme Court at Jos that the t appellant has no right of appeal to the Supreme Court.
This appeal is accordingly struck out.
Appeal struck out.