Rex V. Sala & Anor (1938)

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Murder contra. sec. 319 of Criminal Code where corpus delicti not discovered there wawa be strong circumstantial evidence of death.

Held : Such evidence existing the appeals are dismissed. There is no need to set out the facts.

C. N. S. Pollard for Crown.

Appellants not present.

The following joint judgment was delivered : —

KINGDON, C.J., NIGERIA, BUTLER LLOYD AND CAREY, JJ.

In this case the only difficulty is that there is no direct evidence of anybody having seen the dead body of the person alleged to have been murdered. In such cases the circumstantial evidence leading to the conclusion that the alleged deceased is dead has to be examined with great care. In this case we are satisfied that the circumstantial evidence that the child Hardo is dead is so strong as to justify the finding, even though no witness testified to actually seeing the body.

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The appeals are accordingly dismissed.

Rex V. Okereke Iregbu (1938)

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Slave dealing contra. Section 369 of Criminal Code—Age of childAppealshould be proved—No presumption should be drawn savefromirresistibly warranted by evidence.

Held: Appeal allowed, conviction quashed, etc.

by High

Court.There is no need to set out the facts.

C. N. S. Pollard for Crown.

Appellant in person.

The following joint judgment was delivered

KINGDON, C.J., NIGERIA, BUTLER LLOYD AI CAREY, JJ

In this case the appellant was convicted of slave dealing contrary to section 369 of the Criminal Code. Put shortly the case against him was that having arranged with the parents of a girl to marry her and having paid part dowry he was allowed to take her to Ikot-Ekpene. He returned without her and gave at least two untrue explanations of her non-return and she was never been found since. After recording his disbelief of the appellant’s stories the learned trial Judge finishes his judgment with the words ” I must presume also that this girl was taken or transferred by the accused to be held or treated as a slave.” There is no direct evidence to support the case that the girl was taken or transferred to be held or treated as a slave. It is purely a presumption math. by the Court, and we do not think it is justified.

A Court can make a presumption of this nature when it is a presumption which must irresistibly be made from the evidence. 1.6., when there is no other reasonable presumption which fits all the facts.

That is not the case here. There are other possibilities which there is nothifig to rebut. The facts, for instance, are equall. consistent with the appellant having murdered the girl or again with the girl having been accidentally drowned, and the appellaat being afraid to say so in case he should be charged with murder. The assumption that she has been sold as a slave is, in fact. only one of many which might be made to account for her disappearance.

For these reasons we think that the conviction cannot be Rex upheld. We must point out also that no plea is recorded in thev.
proceedings and that though the girl is spoken of as a child no Okereke

evidence of her age is recorded.Iregbu.

The appeal is allowed, the conviction and sentence are quashed Hingdon, and it is directed that a judgment and verdict of acquittal be ^C‘^T*entered.

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The appellant is discharged.

Rex V. Nicholas Vega (1938)

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Taking of goods apparently abandoned—Bona fide taker thereof cannot be convicted of stealing.

Held : Appeal allowed, conviction quashed, etc. There is no need to set out the facts.

C. N. S. Pollard for Crown.

Appellant not present.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, BUTLER LLOYD AND CAREY, JJ.

In this case the appellant, a second class Prison Warder, was convicted in the High Court before an Acting Assistant Judge sitting at Bamenda in the Cameroons of stealing twenty-nine old sheets of corrugated iron, the property of Government. We are satisfied that the conviction is wrong both technically and on the merits. The appellant frankly admits that he took and used for himself, quite openly, some old corrugated iron sheets which had formed part of an old shed which had been pulled down, these sheets being left apparently abandoned in situ whilst some described as the ” good zinc ” were taken to the prison yard. It was about four years before his action was queried, and then he was charged with stealing these and other sheets. He clearly established his innocence in regard to the other sheets, but was convicted in respect of these old ones. We think that he acted in good faith, entirely innocently in the bona Me and reasonable belief that the old sheets had been abandoned by the Government. In other words there was no men rea and the conviction is bad for this reason on the merits. Apart from this the trial Judge misdirected himself in saying in his summing up ” the test of stealing is : is the thing taken yours.” Under section 383 of the Criminal Code the test is ” Did the accused fraudulently take something capable of being stolen ?” It is well established law that ” things of which the ownership has been abandoned are not capable of being stolen ” (See Archbold 29th edition page 535). If there is any ground for supposing that the accused may have believed the article found to have been abandoned by its owner. the jury must be carefully directed with regard to the matter. since, if the jury find that belief as a fact, the accused is not

guilty. (See Rex v. White 23 Cox 190). The trial Judge failed Rei altogether to direct his attention to this question, viz. what theV.
accused may have believed, and this failure amounted to a Vega Nich°1″ further misdirection.

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For these reasons an appeal is allowed, the conviction is Kingdon, quashed, and it is directed that a judgment and verdict of C.J., acquittal be entered, further that the fine, if paid, be refunded Butler to the appellant.

Rex V. Nafunge Yekun (1938)

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Receiving stolen property contra. section 427 of Criminal Code.Transfer of case from Native Court—Order by District Officer Appealviz. ” case to he retried by me” not an order of transfer to,, Magistrate’s Court—Accused’s consent to trial by Magistrate conviction not having been obtained, proceedings void—High Court by High cannot adopt proceedings in Magistrate’s Court although Court. same person is Judge and Magistrate–Sul:e Akesse v.Fatumo overruled by Section 8 of Ordinance No. 16 of 1936.

Held: Whole proceedings in Magistrate’s Court and. High Court void and appeal allowed.

The facts are sufficiently set out in the judgment.

C. N. S. Pollard for Crown.

Appellant not present.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, BUTLER, LLOYD AND CAREY, JJ.

The appellant was convicted of receiving stolen property, to wit, three goats contrary to section 427 of the Criminal Code, by the Acting Assistant Judge of the Calabar-Aba Area of the High Court in the Cameroons Province on the 25th January, 1937.

He applied for and obtained an extension of time within which to give Notice of Appeal.

The Notice of Appeal dated the 12th July, 1937, sets out the questions of law upon which the appellant appeals against his conviction, as follows:—

1. That I, Nafonge Yekum, having been convicted of a similar offence based upon the same facts in Ndop Native Court on the 17th day of August, 1936, and the said conviction never having been annulled or set aside, and no valid order of transfer under section 25 (1) (c) of the Native Courts Ordinance ever having been exercised, (or if it was exercised it was of no^.effect), I was improperly charged before the Magistrate with Full Powers at Bamenda with the aforementioned offence.
2. That the Magistrate at the trial failed to inform me of the provisions of section 33 of the Protectorate Courts- Ordinance as amended by section 7 of Ordinance No. 15 of 1936: and my trial was therefore void ab initio.

3. That upon transfer of the case from the Magistrate’s Court to the High Court, the learned Judge of the High Court improperly adopted the proceedings of the Magistrate’s Court and did not begin my trial de novo.
4. That there was a substantial miscarriage of justice.

It appears that the appellant was convicted on the 20th July, 1936, by the Native Court of Ndop in the Cameroons Province, of stealing three goats, one chair and cushion and was sentenced to six months imprisonment and to pay £1 10s. Od.

On the complaint of the appellant to the District Officer the latter minuted to the President of the Native Court ”  

The case is to be re-heard please If

On the 17th August, the case was re-heard and the previous sentence was confirmed.

On the 1st September, 1936, an endorsement on the Native Court record was made as follows :—” Case to be retried by me. M. Jeffreys 1/9/36.”

On the 25th September, 1936, Dr. M. D. W. Jeffreys as Magistrate with Full Powers commenced in the Magistrate’s Court the trial of the appellant on three charges viz :—Burglary, Stealing, and Receiving contrary to sections 411, 390 (3) and 427 of the Criminal Code respectively in respect of the same transaction for which the appellant had been convicted in the Native Court.

On the 22nd January, 1937, while the trial was still pending, at the request of the Magistrate, the Chief Judge ordered the transfer of the case to the High Court for trial, and in that Court the conviction as herein first stated resulted and the appellant was sentenced to four years imprisonment with hard labour, two previous convictions having been admitted by him.

It should here be noted that the record of the proceedings before the Magistrate, who was in fact the same person as the Acting Assistant Judge, was adopted as far as it went by the latter after the transfer of the case and the remaining evidence was recorded as being given in the High Court.

The learned Crown Counsel did not oppose the granting of extension of time and, on this Court proceeding to hear the appeal, did not attempt to uphold the conviction.

In support of the appeal the appellant presented his case and argument in writing. Having set forth the relevant facts regarding the several proceedings, the appellant submitted that the conviction and sentence of the High Court should be quashed for the following reasons :-

(a) The counts in the charge presented before the learned Magistrate and adopted by the High Court were based on the same facts, presented in a more aggravated form, as the charges heard and determined by the Ndop Native Court.

2. Section 25 of the Native Courts Ordinance, No. 44 of 1933 (as amended by Ordinance No. 16 of 1936) does not give the Senior District Officer power to nullify the proceedings of the Native Court under sub-section (a); and if the sub-section does in fact confer such power that power was never exercised by the Senior District Officer in this case.; nor can it now be implied.
3. If the submission in paragraph 20 (b) supra be held valid the only other way in which the case could have reached the Court of the learned Magistrate was by way of transfer under section 25 (c) of the said Native Courts Ordinance. (Be it noted that your humble appellant did not at any time attempt to exercise any right of appeal under section 27 nor did any right of appeal exist since the Native Court cases had been reviewed at his request.. Ordinance No. 16 of 1936 section 10 (e) refers).
4. But if in fact there was or could be implied an order of transfer under section 25 (1) (c) aforesaid, such orders would have been of no effect, for after the Native Court had passed sentence of imprisonment nothing in the case remained to be done. The Honourable Court of Appeal is referred to Shule Akesse and Fatima—West African Court of Appeal of 22nd November, 1935.•
5. It is further submitted that the Senior District Officer having failed to exercise any powers under the said section 25 in an unequivocal manner, and having failed to make any valid order the case was never properly before the learned Magistrate and could not and should not have been entertained by him.
6. It is further submitted that the failure of the learned Magistrate to inform your humble appellant of the provisions of section 33 of the Protectorate Courts Ordinance (as amended by Ordinance No. 15 of 1936 section 7) and so to enable your humble appellant to elect in what Court he would be tried make the trial void ab initio.

The Honourable Court of Appeal is referred to a judgment of His Honour Mr. Justice Baker in 1937 in quashing a conviction by the Magistrate Calabar for this reason ; of which judgment the appellant regrets he is unable to furnish particulars.

7. It is submitted that where any conviction by the learned Magistrate would have been bad in law the objections to such conviction were not, and could not be cured, solely by a transfer to the High Court

• Reported in 2 W.A.C.A. p. 355.

when the High Court adopted the proceedings of the
Magistrate’s Court; and that the High Court if it
could and did in fact adopt any part of those

Rexproceedings must adopt the whole of them.

v.(h) It is finally submitted that upon transfer to the High

NafungeCourt the learned Judge was bounden to commence

the trial afresh from the beginning; that he was Kingdon,not empowered to adopt and could not adopt the

proceedings of the learned Magistrate.

Btrtaer

Lloyd and(1..) The humble appellant being a pauper unable to obtain

Carey, J.J.assistance of a learned member of the Bar prays that

the Honourable Court of Appeal will take cognisance

of any further matter in the facts recited in the first

nineteen paragraphs hereof, and not specifically or

adequately raised in the twentieth paragraph, which

would vitiate the conviction of the High Court.

The first order by the Senior District Officer presumably was made under section 25 (1) (b) of the Native Courts Ordinance No. 44 of 1933. The re-trial before the Native Court was therefore in order and after its conclusion the Senior District Officer could have exercised in regard to it the powers conferred upon him by section 25 of the Native Courts Ordinance. He could under subsection (1) (c) have transferred it to a Magistrate’s Court, and when it came before a Magistrate’s Court under such an order of transfer that Court could under sub-section (9) have re-heard the case.

But the Senior District Officer did not make such an order, but instead he ordered ” case to be re-tried by me ” i.e._; by the Senior District Officer. We can find no power in the section to make such an order and in any case the order cannot have the effect of transferring the case to a Magiat. ate’s Court. It follows that the case was never properly &fore the Magistrate’s Court and all proceedings before that Court and all subsequent proceedings amount to a nullity for lack of jurisdiction. Apart from this there were two further irregularities each of which is sufficient in itself to compel the quashing of the conviction.

Before the trial of the appellant by the Magistrate was commenced, the appellant should have been informed of his right to be tried in the High Court as required by section 33 of the Protectorate Courts Ordinance (No. 45 of 1933 as amended by Ordinance No. 15 of 1936 section 7) and the appellant never having expressly consented to being tried by the Magistrate such trial by the Magistrate was null and void .ab initio.

Furthermore, the trial before the Magistrate, even had it not for the reason already given been void ab initio, was never concluded by the Magistrate and there was no proper trial by the High Court in that the evidence on which the High Court purported to act was not all given before it and taken by it.

It is obvious for these reasons that this Court was obliged to Rex allow the appeal and quash the conviction and sentence recorded byv.
the High Court and further under the express terms of section Nicholas 10 (2) of the West African Court of Appeal Ordinance to direct —

that a judgment and verdict of acquittal be entered.Kingdon,

Before leaving this case there is one other point which we C.J.,Butler might usefully make clear.Lloyd and

When the case Stile Akesse versus Fatwma, to which reference Carey, JJ. is made supra, was decided by this Court, section 25 (1) (c) of

the Native Courts Ordinance read as follows :—

” (c) Order the transfer of anx cause or matter either before trial or at any stage of the proceedings, whether before or after sentence is passed or judgment is given, to another Native Court or to the Magistrate’s Court or to the High Court.”

The Court held that the sub-section was a contradiction in terms in that the power to transfer a cause ” at any stage of the proceedings ” applied only so long as anything remained to be done to complete the judgment, that where the proceedings are complete the power is gone and that the transfer of a cause after judgment was given was of no effect, the proceedings having terminated. Ordinance No. 16 of 1936, section 8, by deleting the comma after ” proceedings ” and the words ” whether before ” disposed of the contradiction and expressly gave power to transfer a cause or matter after sentence is passed or judgment is given, and the sub-section (9) then added to section 25 enables the Court concerned after transfer under sub-section (1) (c) to take any course with regard to the cause or matter which it considers justice requires subject only to the limitation that such Court is not empowered to try a person for an offence of which he has been acquitted.

The defect disclosed by the judgment in Shule Akesse versus Fat uma was thereby cured on the 4th June, 1936, the date of the amending Ordinance and the argument of the appellant based on that case had no longer any force.

Rex V. Musa Damagudu & Anor (1938)

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Muider, contra. sec. 319 of Criminal Code—Weight of evidence—Identification by an unworn witness.

Held: Such identification was incorrect but there being no miscarriage of justice thereby the appeals are dismissed.

There is no need to set out the facts. C. N. S. Pollard for Crown.,

Appellants in person.

The following joint judgment was delivered:—

KINGDON, C.J., NIGERIA, CAREY AND GRAHAM PAUL, JJ.

In this case the trial Judge certified it as a fit case for appeal on the following grounds :—

1. Whether the Court was correct in allowing, at the view of the locus in quo, a witness to point to a particular site before he had given evidence in Court.
2. Whether the finding was against the weight of evidence.

As to the first, we are of opinion that the procedure was not correct and that the persons who pointed things out should have been sworn as witnesses before being allowed to do so. That could have been done on the spot, if necessary. We are however of opinion that no substantial miscarriage of justice occurred on account of this incorrect procedure, and consequently do not allow the appeal on that ground.

As to the second, we are of opinion that the finding was not against the weight of evidence.

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The appeals of both appellants are dismissed.

Rex V. Motesho Okoni & Ors (1938)

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Procedure—Additional grounds of appeal filed out of time—Rex by court.v. Wyman, 17 Cr. App. p. 10.5 not applicable in Nigeria—Where misdirection is a ground of appeal, particulars of such misdirection must be given.Murder or Manslaughter—Person in authority responsible for acts done by his order—Section 316 (3) of the Code explained—Where Nigerian law differs from English law—Death caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life, is murder—Not necessary that such an act should constitute a felony—English law requires that the act should constitute a felony involving violence, but does not require that it should be of such a nature as to be likely to endanger human life.

Held : Appeal dismissed.

The facts are sufficiently set out in the judgment.

C. N. S. Pollard for Crown.

Sir William N. Geary, Bart. (with him &fire) foi Appellants. The following Order was made by KINGDON, P

The Court is of opinion that it is not practicable to enforce strictly in this country the rules laid down in Rex v. Wyman. The practice has been to allow grounds of appeal to be added a reasonable time before the hearing of the appeal. In this case additional grounds were filed just before the case was set down for hearing six days ago and the case was adjourned till to-day in order to give opportunity for consideration. We are not prepared to refuse to do substantial justice on the ground of this objection to procedure. As regards the possible merits of the case we should like to hear what can be said on behalf of the appellants and accordingly grant the leave to appeal. In regard to the objection that particulars of misdirection have not been given, this is valid and the appellants must be called upon to furnish particulars.

After hearing the appeal the following joint judgment was delivered on the 15th January, 1938 :—

KINGDON, C.J., NIGERIA, BUTLER LLOYD AND CAREY, JJ.

In this case the three appellants were convicted in the Ibadan Division of the High Court of the murder of a woman named Yesajo at Igboora in the Oyo Province and sentenced to death. The third appellant is Bale of Igboora and the first two appellants are his messengers. The case for the prosecution at the trial is narrated by the trial Judge as follows : —

” The central figure of the story is one Shitta Agboola, a native of Abeokuta, who has been resident in Igboora for some eighteen years. He is referred to throughout the evidence as ” Shitta ” and I shall so refer to him in my judgment. He holds no position of importance in Igboora.

Shitta admits that five years ago he seduced the wife of one Adegoke who is the son of the Balogun of Pako. Pako is a town near Igboora and the Bale of • Pako is a member of the Native Court of Igboora over which the third accused, who is the Bale of Igboora, presides. As a result of the seduction Shitta became very unpopular with the Bale of Pako and with the other Bales who sat under the third accused in the Igboora Native Court. It appears however that the third accused at that time took no active part in the hostility to Shit* and Shitta admits that the third accused came at that time as his witness to give evidence before the Ibadan Native Court. In consequence of this friendly attitude of the third accused at that time the Bales of Pako and Iberekodo (both members of the Igboora Native Court) quarrelled with the third accused. So did other important people in Igboora.

During the last four years there have been at Igboora various developments of the antagonism towards Shitta, and in March, 1937, these apparently came to a head and he was expelled from Igboora by the third accused and the Bales of Pako and Iberekodo, Shitta left the town in consequence of the expulsion but eventually, early in the morning of 18th March, 1937. he returned to Igboora. He says his return was authorised by, the District Officer, Ibadan, in whose district Igboora is, but whether that was so or not is of no consequence in this case.

18th March, 1937, happened to be a Court day in Igboora Native Court. The nine members of the Court and the litigants assembled as usual. On the arrival of the other members of the Court they were informed by the third accused that Shitta had returned. This appears to have infuriated the third accused and the Bales of Pako and Iberekodo and some others to such extent that they could not attend to any of the Court work that morning. They had a discussion with some other members in the Court retiring room and then asked the Native Court clerk to prepare a warrant for the arrest of Shitta. The clerk naturally asked the third accused on what charge. No proper charge could be stated by the third accused or any of the others and the clerk quite properly said that he could not prepare the warrant.

He suggested that they should write to the District Officer and to the Olnbadan.

Up to this point the third accused was apparently supported by all his fellow members of the Court in the proposals for dealing with Shitta. They all agreed that they could not attend to the Court work that morning is

consequence of Shitta’s return, though it appears that the third accused Rex

and the Biles of Pako and Iberekodo were mainly responsible for thisv.

Motesho

decision.

i & The next step was the sending of messengers to Shitta calling him to Okon

come to Court and explain why lie had returned. According to the Crown ^°Th‘

witnesses the messengers sent were the first and second accused, the Akoda

Hingdon,

Akinwale and two others These five messengers possibly accompanied by

C.J.,

some other people, went three times to Shitta’s house and saw Shitta. Shitta

B utler

each time refused their bidding. After Shitta’s refusal had been intimated

Lloyd and

for the third time the members had another conference at which they decided

Carey, JJ.

that Shitta must leave the town forthwith; that they, the chiefs, should

leave the Court and go to the market place, and that the Oro drums should be used to drive Shitta out of the town.

They all went to the market place. The third accused again presided as they sat under the tree there. The third accused sent a message to the hereditary drummer of Igboora that he was to come to the market and bring the Oro dfums with him. Ladeji the drummer came as he was ordered. On his arrival he was told by third accused to beat Oro drums, but at first refused on the ground that it was not an Oro festival day and that he could not beat the Oro drums except on such a festival day. The third accused rebuked him for questioning his orders and Ladeji eventually obeyed the order.

Whenever the drumming started the market woman Scattered and there was confusion. The beating of these particular drums by customs forced the women to run to their houses and they did so.

Three principal members of the Native Court protested against the action of the Bale in ordering the Oro drums to be beaten but without success, and whenever the drumming started these three members left the market and went home. These three members have given evidence for the Crown. In estimating the value of their evidence it is important to note that they were in agreement with the measures against Shitty up to the point when the Oro drums were beaten.

After they had gone the third accused again called the same five messengers. By this time apparently it had come to the third accused’s knowledge that Shifts’ had left his own house and gone into Basin’s house which was next door. Shitta himself says he did so when he saw the chiefs leaving the Court and going to the market, and that when he heard the Oro drums he was terrified and ran away to the nearest Railway Station. The messengers were ordered by the third accused, with the approval apparently of the remaining members, to go to Basin and tell him that he must eject Shitta from his house. ‘Basin’s reply that Shitta had already left his house was apparently not believed.

The messengers were sent three times from the market to Basin, ‘the
last time with the message that if Basin did not eject Shitta forthwith he
(Basin) would suffer Shitta’s punishment. This threat did not produce
Shitta and the third accused then called up the first and second accused and
said to them ” Do you know where exactly Shitta is ” ? The second accused
replied that he did; whereupon the third accused said to first and second
accused ” If you know where he is exactly you should go and put fire there.”
Immediately the third accused said that the first and second accused
went towards the house of Basin. They were seen to approach Basin’s house.
The first accused was heard to ask second accused if this (Basin’s house)

was where Shitta was. Second accused replied that he was sure Shitta

v.was there. Thereupon the first accused lit a match and set fire to the

Moteshothatched roof of Basin’s house which immediately went up in flames. The

Okoni &first and second accused then ran away.

All this time the beating of the Oro drums in the market continued.
The flames and smoke of Basin’s burning house were visible in the market
Kingdon, and when the drummer saw them he stopped drumming, drawing the attention

C.d.,of the third accused to the fire. The third accused however ordered him to

Butlerresume his drumming which he did until he (the drummer) saw the fire

Lloyd and spreading to his own house. Then he dropped his sticks for good and ran Carey, U. to his own house.

With the stopping of the drumming and the shouts of ” Fire ” the whole town seems to have crowded to the scene of the fire. By the time they got there the roof ofBasin’s house was completely or almost completely burnt. When the third accused with his fellow-members of the Court arrived on the scene and, pretending ignorance, asked how the fire had occurred, the women of Mitts’s house abused them and accused them of sending messengers to burn the house, to which accusation no reply was given by the third accused.

The unfortunate woman Yesajo—so far as the evidence proves—was the only victim of this fire. She was found badly burnt at the scene of the fire. She was afterwards taken to Adeoyo Hospital, Ibadan, where in spite of treatment she died of her burns on 13th April, 1937.”

At the trial the defence of the appellants to this story of the prosecution was a denial of the facts alleged, the two first appellants seeking to establish an alibi and being supported in this by the third appellant. If the story of the alibi were true it established the innocence of all three. At the trial there was no suggestion made by the defence that even if the prosecution story were true the facts disclosed the offence of manslaughter rather than murder. The trial Judge rejected, and in our opinion rightly rejected, the story of the defence and accepted that for the prosecution. He sums up his finding in the following four propositions :—

1. The third accused, a person in authority over first and second accused, ordered them to commit a felony, namely arson, in regard to the dwelling house where they knew Shitta to be.
2. The first and second accused in concert, and because of third accused’s orders, proceeded at once to carry out that felony.
3. The carrying out of that felony was the setting fire to Basin’s house.
4. The fatal burning of Yesajo, an inmate of that dwelling house was a reasonably probable consequence of setting fire to the house.

We accept those four propositions and might usefully emphasise in respect to the last, that the probability of an inmate being burnt was greater in this case than it would be in ordinary cases owing to the persistent beating .of the Oro drums whereby all women are moved to go and remain indoors.

Rex V. Landing Jameh (1938)

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Stealing contra. section 255 of Criminal Code—Questions of Jurisdiction of Trial Court, calling of further evidence beforecase raised by Appellant.fromAppeal Court and failure of Prosecution to prove a prima facie Appeal

Held: Appeal dismissed.Supreme

There is no need to set out the facts.Court,

exercising

S. A. Benka-Coker for Crown.appellate

C. H. D. During for Appellant.jurisdic-

tion.

The following joint judgment was delivered :—

KINGDQN, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND WEBB, C.J., SIERRA LEONE.

In this case the appellant was charged in the Provinoial Court of the South Bank Province with “theft by clerk or servant contrary to section 256 of the Criminal Code.” The particulars of the offence being given as follows :—

That accused being a clerk or servant to the Gambia Government on 8th October, 1937, stole from the Public Works Department in Bathurst ten cases of petrol of the value of £8 3s. 4d. property of His Majesty’s Government and did send to Cape St. Mary and deliver them to one J. K. Juf, alias Kuyu Juf, contrary to section 256 C.C.”

Before any witnesses were called the charge was amended by substituting section 255 of the Criminal Code for 256 of the Criminal Code and by omitting the words ” and did deliver them to one J. K. Jut alias Kuyu Juf.” The offence under section 255 is ” stealing by person in public service.”

At the commencement of the trial the appellant was represented by counsel, but counsel found it impossible, owing to indisposition, to continue to appear and after the conclusion of the evidence of the first witness for the prosecution the appellant was not represented.

At the close of the case for the prosecution the appellant slated that he did not wish to say anything, or call any witness or give evidence himself. The Commissioner of the South Bank Province, who constituted the Court, thereupon delivered a considered judgment, at the conclusion of which he found the

appellant guilty and sentenced him to nine months I.H.L. Against that verdict the appellant appealed to the ‘Supreme Court on questions both of law and fact. He also appealed against the sentence. The Supreme Court dismissed the appeal against conviction both on law and fact and also dismissed the appeal against sentence. Against that, decision of the Supreme Court the appellant has now appealed to this Court on questions of law, no appeal to this Court is open to him on questions of fact or against the sentence.

Shortly the facts relied upon by the prosecution to prove the offence are that the appellant was Chief Driver of the Public Works Department and in that capacity was in charge of what is known as ” the small store ” in Bathurst which store is the property of the Government where small quantities of Government petrol were kept under the control of the appellant, who issued petrol to other Public Works Department drivers as and when it was required for the motors or tractors which they drove. That on the day in question the appellant caused to be loaded from this store ten cases of Government petrol into the tractor of one of the drivers named Abdulai Fal, to whom he then issued directions to take the petrol to Waelter’s compound at Bakau, a place in the South Bank Province. Fal did so and the petrol was unloaded and put into the house in Waelter’s compound. Subsequently the cases of petrol were observed to be dealt with in such a way as to lead to the inference that they had been stolen. It was not part of the prosecution case that the Government was able to show that it had lost any petrol. The case was put no higher than this, all the petrol in the small store was Government petrol and that it was stored and issued in such a way that an accurate check was impossible, so that it would not be difficult over a period to accumulate a surplus of as much even as ten cases.

The first point taken in this Court on behalf of the appellant goes to jurisdiction. It was contended that, assuming the prosecution story to be true, the theft (if any) took place wholly in Bathurst and that consequently the only Courts with jurisdiction to try the case were those with jurisdiction over offences committed in Bathurst, of which the Provincial Court of the South Bank Province is not one. This point raised in both the lower Courts and overruled on the ground that the offence was a continuing one and therefore cognisable in the Provincial Court under the provisions of section 61 of the Criminal Procedure Code, the relevant part of which reads :—

” When an offence is ” to be committed in more

” it may be inquired into
1C diction over any of such

a continuing one, and continues local areas than one

• •

or tried by a Court having jurislocal areas.”

It is only necessary to refer to one of the several cases quoted to us to show that the view of the two lower Courts was correct. In the case of Griffith v. Taylor (1876) 2 C.P.D., 194 at page 202 Cockburn, C.J., said ” if a stolen chattel is carried over a ” considerable space by the thief, the asportavit continues so long ” as the removal continues, and the taking in point of law, ” continues too.”

That disposes conclusively of the point as to jurisdiction.

The appellant then applied to this Court for an order that one of the witnesses called at the trial should be summoned to appear before this Court to be further examined. This application is divisible into two parts : —First the appellant wished to recall the witness, Cecil Hugh Philp, the Public Works Department Accountant and Storekeeper, in order that he might testify that the record made by the trial Court of his evidence does not convey the meaning he intended. A similar application was made to the Supreme. Court at the hearing of the appeal before it, and in our opinion, was very properly refused by that Court. If the appellant wished to call that decision in question, his proper course was to appeal to this Court against it, on the ground that the Supreme Court had not exercised its discretion judicially. He has not taken that course and would not have been likely to succeed if he had. This Court will certainly not now entertain a fresh application in the same sense. Secondly the appellant wished the same witness recalled to give evidence similar to the evidence which he had given in another case subsequently both to the trial of this case and to the hearing of the appeal both to Supreme Court. The evidence which it was alleged that Mr. Philp had given in the other case and would repeat to this Court, if he were allowed to, was to the effect that he had since made a careful examination of the petrol bought and petrol issued out and found no shortage. Such evidence would not be of much value since, as already pointed out, it was not part of the case for the prosecution that there was a definite shortage which could be proved, and this witness had sworn at the trial that no reliable check was possible. Therefore in the ordinary way there would be no good reason for taking the unusual course of allowing additional evidence to be called in an Appeal Court. But in this instance there is the further point which is conclusive against this part of the application, namely, that any further evidence which could be given could, only affect the facts and not the law and this Court cannot entertain an appeal on the facts. Even if this Court heard the evidence and after doing so was satisfied that the trial Court was wrong to convict on the facts, it would be powerless to quash the conviction, because it has no jurisdiction to entertain an appeal on questions of fact. For these reasons the Court refused the application.

The next point made on behalf of the appellant was that the trial was irregular and illegal because the Court went on with the case in the absence of counsel for the appellant, who was too ill to attend, and without granting such an adjournment as would allow either the counsel who had already appeared to recover his health or another counsel to be brought from Sierra Leone to appear. As to this it need only be said that the question of granting an adjournment is one in the discretion of the Court and unless it can be shown that that discretion has not been exercised judicially an appeal Court will not interfere. In the present case the trial Commissioner appears to have been exceedingly indulgent to appellant and his counsel in the matter of adjournments and in our view there is no ground even for complaint still less for suggesting that the discretion had not been exercised judicially.

The only other point of substance submitted on behalf of the appellant was that the prosecution did not make out a prima facie ease, which justified the trial Court in calling upon the appellant for his defence, because no evidence was led to show that any Government petrol had been lost. But it is a well established law that proof that goods of the prosecutor have been taken may be established by the circumstances of the case, although the witnesses for the prosecution cannot swear to the loss of the article said to be stolen. In this respect the present case appears to be as nearly as may be on all fours with the case of Rex v. Mockford (11 Cox 16 C.C.R.). There was, in our opinion, sufficient in the circumstances of the case to justify the finding of the trial Court that Government petrol was stolen.

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These are the reasons which led us to dismiss the appeal after hearing the argument put forward by the appellant’s counsel on his behalf.

Rex V. Igwe (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Murder, contra. sec. 319 of Criminal Code.

Held: On the facts found by the trial Judge the appellant acted in self-defence and appeal allowed.

The facts are sufficiently set out in the judgment.

C. N. S. Pollard for Crown.

Appellant in person.Appeal

from,

The appeal was allowed on the 11th August, 1938, and on the conviction 16th August, 1938, the following joint reasons for judgment were by High delivered :—Court.

KINGDON, C.J., NIGERIA, CAREY A.ND GRAHAM PAUL, JJ.

In this case the appellant was convicted before the High Court at Okigwi of the murder of one Onuoha Okorondu. The facts as found by the trial Judge are : —

 ” Prior to the material time litigation had taken place betireeif ” the accused Igwe and the deceased Onuoha Okorondu, who “werep in consequence, at enmity one with the other, thereafter ” and ion the date in issue, that is on the 20th day of January, ” 1938.

” In the morning of that day (20/1/38) the accused, from his hut, ” obslrved the deceased, at a distance of fifty paces, cutting ” palm-nuts from trees growing on land which had, also, been ” the subject of litigation between himself and the deceased ” and; which was still in dispute, on that date.

” The accused, thereupon, proceeded to the place and invited the

” deceased to cease from gathering the produce in question.

” The deceased however refused to comply with this request, abused ” the accused and informed him that if he continued to demand ” that he should leave that produce, he (the deceased) would ” sue him (the accused) in the Native Court.

” The accused, however, proceeded to the foot of the tree with the ” intention of removing the severed bunches, whereupon the ” deceased informed the accused that if he persisted he, the ” deceased, would kill the accused.

” In reply, the accused reminded the deceased that he had offered ” to redeem the land and informed him (the deceased) that he ” (the accused) was ready to die.

” The accused, though unarmed, thereupon attempted to carry off ” the produce, whereupon he was pursued by the deceased ” machete in hand.

” The accused, however, succeeded in disarming the deceased and ” in felling him to the ground, without himself receiving ” injury, whereupon the accused possessed himself of file ” deceased’s weapon, set upon him where he lay, defenceless, ” upon the ground and then inflicted (with the deceased’s ” machete), multiple mortal wounds, upon the head and body ” of the deceased.

The accused who was uninjured, as has been stated, took refuge ” in the forest, in order to escape the possible vengeance of ” the relatives of the deceased and upon the day following ” upon the homicide surrendered himself to the polide.”

-The following possible defences were considered by the, trial

Judge : —

” Provocation both immediate and pre-existing.

” Absence of premeditation or of malice prepense.

” Defence of property and person as against a trespasser.”

They were all rejected, and it is in his rejection of the defence of self-defence that we differ from the learned trial Judge. In considering the defence of ” defence of property and person against a trespasser ” he says :—

” Assuming that the deceased had, in fact, no right to take produce ” from palm trees growing upon the land in question, which ” presumption may or may not be correct, the deceased ” committed neither a felony of violence nor a forcible or ” atrocious crime in so doing and the accused therefore had no ” justification for attacking beyond the bounds of ordinary ” resentment as he did, the deceased with a deadly weapon; ” nor for striking blows therewith, save in self-defence (which ” was not the case in that he (the accused) had previously ” disarmed the deceased).”

It is clear that in so saying the Judge overlooked the all important fact that it was deceased who attacked accused, not accused who attacked deceased. Moreover it is clear that the deceased attacked the accused with what the accused had every reason to believe was a very definite intention to kill. It is clear that up to the moment when he disarmed the deceased the accused acted perfectly within his rights, the only question is whether when once he had disarmed the deceased he was justified in seizing the deceased’s matchet and killing the deceased with it. Upon this point the accused in the heat of the moment may well have thought, and indeed not without reason, that he was engaged in a life and death fight with deceased, if he could not kill the deceased he would certainly be killed by the deceased. And it must be remembered, it was the deceased who started the deadly fight. This brings the accused’s act within the provisions of the second paragraph of section 286 of the Criminal Code, as being lawful in self-defence.

Rex V. Johnson Oguma (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Demanding property as a public officer contra. sec. 404 (1 ) of the Criminal Code.Receiving property to show favour, contra. sec. 100 of the Criminal Code.

Held : Transaction must be with a person employed in public service and appeal allowed in respect of one count, but in respect of other counts appeal dismissed.

There is no need to set out the facts.

Appellant in person.

C. N. S. Pollard for Crown.

The following joint judgment was delivered

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBB, C.J., SIERRA LEONE.

There is no substance in the appellant’s grounds of appeal, but counsel for the Crown has pointed out that the particulars given and facts proved under the third count do not disclose any offence under section 100 of the Criminal Code. It is essential under that section that there should be a transaction pending likely to take place with a person employed in the public service. In this case in place of a person employed in the public service there was a private prosecutor.

We agree with this view and accordingly the appeal is allowed in respect of the third count, the conviction and sentence passed on that count are quashed and it is directed that in respect of that count a judgment and verdict of acquittal be entered.

The appeal in respect of the conviction and sentence on the second count is dismissed, and the appellant will serve the term of twelve months I.H.L. passed upon him in respect of that count.

Rex V. Ibrahim Bauchi (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Possession by night of instruments of housebreaking contra. Section 417 (c) of Criminal Code—Admissibility in evidence of previous convictions.

The following joint opinion was delivered

KINGDON, C.J., NIGERIA, BUTLER LLOYD AND CAREY, JJ.

This is a case stated for the opinion of the West African Court of Appeal by the Judge of the Kaduna-Makurdi Judicial Division.

The Judge held as follows:—

” (a) a previous conviction must not be brought to the notice of the Court (except where under the law of evidence it is permissible to do so) unless it forms an essential ingredient of the offence, and that

2. the prisoner cannot be sentenced under the sub-section imposing the increased sentence unless the fact that he is liable- to the enhanced penalty has brought to his notice before he was called on to plead, but that
3. a practice by which the accused is given notice in writing that it is intended to give evidence of previous convictions—these should be set out in detail—which renders the prisoner if lie pleads guilty or is convicted by a finding of guilty liable to an increased penalty would be unobjectionable, and that
4. the Court would in such case feel justified in using the special sub-section in suitable cases for the purpose of sentence.”

And our opinion is desired as to whether the above decisions are correct in law.

We are of opinion that sub-paragraph (b) is a correct statement of the law but sub-paragraph (a) is incorrect in stating that previous convictions with certain exceptions must not be brought to the notice of the Court. The rule is that with the same exceptions previous convictions must not be brought to the notice of the jury, and although of necessity the Judge may be himself performing the functions of a jury the rule does not apply to him.

This being the rule it is the duty of the Judge in a case where liability to increased punishment depends on the proof of previous convictions to inform the accused as part of the charge that it is proposed to •prove these convictions against him.

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The practice to which sub-paragraphs (c) and (d) refer is therefore unnecessary.