Rex V. Lasisi Jinadu (1948)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law—Autrefois acquit—Autrefois convict ‘OrderlyRoom dis-ciplinary proceedings against a police officer—Necessity for special plea—Essential elements for establishment of pleas of autrefois acquit and autrefoisconvict—Police Regulations.
Proceedings against a police officer in a Police Orderly Room for an offence against discipline are not proceedings in a court having jurisdiction to hear and determine a criminal charge and therefore the special pleas of autrefois acquit or autrefois convict cannot be raised upon a criminal prosecution of the police officer for an offence against the Criminal Code arising out of the same facts.
A special plea should always be specially raised.
Cases referred to:
- R. v. Miles, 29 Q.B.D. 423; 59 L.J.M.C. 56; 62 L.T. 572; 54 J.P. 549; 6 T.L.R. 186; 17 Cox C.C. 9.
- R. v. Barron, 10 Cr. App. R. 81; (1914), 2 K.B. 570; 83 L.J.K.B. 786; 78 J.P. 311; 30 T.L.R. 422; 58 Sol. Jo. 587.
- R. v. Kendrick and Smith, 23 Cr. App. R. 1; 144 L.T. 748; 29 Cox C.C. 285. Appeal from the Supreme Court of Nigeria.
Magnus Williams and Akitoye for Appellant.
Lloyd, Crown Counsel, for Crown.
The following judgment was delivered:
Verity, C.J. This is an appeal from convictions in the Supreme Court on charges of compelling action by assault contrary to section 367, and assault occasioning harm contrary to section 355 of the Criminal Code. At the trial the accused raised the point that he had previously been acquitted of similar charges in what are described as ” Orderly Room Proceedings “, he being a Lance-Corporal of Police. The learned trial Judge ruled that a plea of autrefois acquit had not been made out, proceeded with the hearing and convicted and sentenced the accused who has now appealed.
The circumstances are that the appellant was charged under Regulation 17 (21) of the Police Regulations, 1943, made under the Police Ordinance, 1942, with using unnecessary violence to persons in his custody, the particulars of the charge being that he flogged and tortured certain pprsons whom he suspected of murder, inflicted injuries on them and caused them to make false statements. The particulars of the charges upon which he was convicted in the Supreme Court are that, with intent to extract confessions from these persons of implication in murder, he unlawfully assaulted them, and also that he assaulted them and thereby did them harm.
The proceedings under the Police Regulations were taken before a superior police officer under Regulation 19, and the officer who conducted them found the appellant guilty and awarded the punishment of reduction to the rank of third-class constable. Thereisno provision in the Regulations for appeal from such a finding but by virtue of Regulation 19 (2) the Commissioner of Police may remit, mitigate, reduce or alter the punishment. The appellant addressed a petition to the Commissioner ” craving acquittal and discharge “, although it does not appear that the Commissioner has under the Regulations any power to grant such prayer. What next transpired is not clear from the record but it
would seem that the Commissioner addressed the Chief Secretary on the matter. Subsequently the Chief Secretary replied that the Governor’s Deputy directed “that the Orderly Room proceedings be set aside, that his conviction be quashed and that he be discharged . . . ” The Chief Secretary added that ” this direction is without prejudice to any criminal proceedings, which, on the advice of the Law Officers, may be brought against Lance-Corporal Lasisi Jinadu “.
It appears from a note at the foot of this letter that these directions were carried out. The present proceedings followed.
The grounds of appeal are substantially that the learned trial Judge was wrong in holding that the Police Orderly Room is not a Court and in finding that the plea of autrefois acquit was not made out, and further that the appellant has stood trial twice for the same offence.
We think it convenient in the first place to determine what was the position of the appellant in relation to the Orderly Room proceedings at the date when he was put on trial in the Supreme Court. The Orderly Room proceedings terminated in a finding of guilty and the award of punishment. It was then open to the Commissioner of Police to remit, mitigate, increase or alter the sentence. He did not follow this course, but under ” directions ” from the Governor’s Deputy, purported to set aside the proceedings, quash the conviction and discharge the appellant. It was rightly conceded by Crown Counsel that the Governor’s Deputy was not empowered to give the directions contained in the Chief Secretary’s letter. Those directions were not authorised by law and the Commissioner’s compliance with them had no legal effect. In our view, therefore, the finding and sentence in the Orderly Room proceedings were in force when the criminal proceedings before the Supreme Court were instituted. This being so the plea of autrefois acquit was misconceived; the special plea, if any, would be autrefois convict.
We do not, however, propose to follow the course of summarily dismissing the appeal on this ground. There was no formal special plea entered (though this should have been done) and the essence of counsel’s submission is that ” the appellant stood trial twice for the same offence “, which is contrary to a well established rule of law in relation to criminal charges. This rule is, in Nigeria, embodied in sections 181 to 185 of the Criminal Procedure Ordinance and in section 45 of the Interpretation Ordinance, following section 33 of the English Interpretation Act, 1889, which, as stated by the learned author of Archbold’s Criminal Pleading (31st Edition, page 134), applies the common law rule to statutory offences –where an act or omission may constitute an offence under two or more statutes.
In R. v. Miles (1) Hawkins, J., stated the rule in the following terms:—
” Where a criminal charge has been adjudicated upon by a court having jurisdiction to hear and determine it, that adjudication whether it takes the form of an acquittal or conviction, is final as to the matter so adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the same offence.”
There are three elements essential to the establishment of this plea. The original charge must have been a criminal charge, the tribunal which adjudicated thereupon must have been a court having jurisdiction to hear and determine such a charge, and there must have been a subsequent prosecution for the same offence. No one of these three elements exists in the present case. The original charge was not a criminal charge, having been no more than an offence contrary to Regulation 17 of the Police Regulations which constitutes not criminal offences but ” offences against discipline “. The tribunal which. adjudicated upon this charge was not a court having jurisdiction -to hear and determine criminal charges, but a tribunal to hear charges of offences against discipline only. The
reference to ” a Court ” in section 65 of the Police Ordinance and Regulation 20 of the Regulations indicate that Orderly Room proceedings do not constitute a Court. The charge in the subsequent proceedings in the Supreme Court was not the same charge, in the sense in which that phrase has been judicially interpreted. In R. v. Barron (2) Lord Reading said ” This rule applies not only to the offence actually charged in the first indictment, but to any offence of which he could have been properly convicted on the trial of the first indictment “, but later in his judgment he added ” the test is not, in our opinion, whether the facts relied upon are the same in the two trials “. Again, in R. v. Kendrick and Smith (3) Swift, J., said ” It is quite clear that to enable an accused person to rely on that plea, the offence with which he is charged on the second occasion must be the same offence, or practically the same offence, as that with which he was charged on the first occasion. It is not enough to say that the evidence tendered on the second charge was the same evidence as that offered to prove the first charge. It is not the evidence which is material to the charge that grounds the plea, but the offence which is charged “.
In the present case, whether or not the evidence in the Supreme Court was identical with that heard in the earlier proceedings in the Orderly Room, it is impossible to hold that the offence is the same or practically the same, or that the offence of which the appellant was convicted in the Supreme Court was one of which he could have been convicted on the trial of the. proceedings in the Orderly Room. The disciplinary offence of using unnecessary violence to persons in his custody cannot be called the same or even practically the same offence as that with which he was charged under the Criminal Code, although the evidence which supported the former might very well support the latter. The offences of which the appellant was convicted under the Criminal Code in the Supreme Court were not offences of which he might have been convicted in the Orderly Room proceedings, in which, indeed, he could not have been convicted of any criminal offence whatever.
We are of the opinion that all grounds of appeal in this case fail and that the learned trial Judge was right in holding that the appellant’s special plea was not made out. The appeal is therefore dismissed.
Although the appellant has suffered a double punishment on the same facts, any hardship to the appellant in the circumstances of this case is more apparent than real. It is true that he has been reduced in rank and that he has also been sentenced to a term of imprisonment. But had the proper course been followed and the appellant been first prosecuted for offences under the Criminal Code, convicted and sentenced, he might then properly have been dealt with under section 65 (2) of the Police Ordinance and reduced in rank or discharged from the Police Force. In the result the appellant finds himself in precisely this position.
We would, however, draw attention to the fact that under the Ordinance and the Regulations as they now stand circumstances might arise in which a member of the Force might be awarded a sentence of imprisonment under the Regulations and suffer a further term of imprisonment following conviction in a Court based upon the same facts without regard to the punishment previously awarded. It is desirable, in our view, that this should be avoided by an extension of section 65 of the Police Ordinance to provide that in such case the Court convicting a person who has already been dealt with under the Police Regulations should have regard to any sentence which may have been imposed upon him thereunder, a provision which is to be found in section 162 of the Army Act in relation to convictions by a court-martial.