The Queen Vs Augustine Ogubuike (1960) LLJR-SC

The Queen Vs Augustine Ogubuike (1960)

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The appellant in this case appeals against his conviction after his trial by information on two counts: the first the manslaughter of Theresa Nkamngang and secondly for reckless driving contrary to the Road Traffic Ordinance. The facts are briefly these. The appellant was driving his lorry at or near Kumba in the Southern Cameroons and at one point drove the vehicle on his off-side of the road striking the woman of whose manslaughter he was accused and knocking her into the gutter. She received injuries from which she died. At the trial of the appellant before the Southern Cameroons High Court sitting at Buea, the learned trial Judge, Coker, J., convicted him and passed sentence on each of the two counts. Mr. Adesanya appeared before us on behalf of the appellant, and on his behalf filed certain grounds of appeal which, although stated to be grounds alleging errors in law, actually raised matters of fact, and as we were not prepared to allow appellant’s Counsel to argue on facts, the appeal would but for the address by Mr. Walker, Senior Crown Counsel, have been disposed of forthwith. We having indicated that we considered conviction and punishment on both of the counts was incorrect, Mr. Walker addressed us on this subject at considerable length and submitted first that as the Legislature by enacting sections 156 to 161 of the Criminal Procedure Ordinance allowed counts for these two offences to be joined in a single information, there can be no objection in law to two or more convictions and two or more punishments for offences arising out of the same set of facts. Section 53 of the Interpretation Ordinance, he pointed out, provides that a person shall not be liable to be punished twice for the same offence, not that he shall not be liable to be punished twice for the same acts or omissions. He next submitted that the plea of autrefois acquit could not be raised in this particular instance because the two offences here are totally different.

Mr. Walker referred us first to the case of Andrews v. Director of Public Prosecutions, 26 C.A.R. 34, and then to R. v. Stringer, 1933, 1 K.B. 704. In the latter case the appellant before the Court of Criminal Appeal was charged on two counts: the first of manslaughter of a man who was knocked down and killed by the appellant’s motor lorry and on the second count with driving the lorry dangerously contrary to the Road Traffic Act. The jury acquitted the appellant of manslaughter but convicted him of dangerous driving.

On a submission that this verdict was bad, the trial Judge over-ruled the submission and upheld the conviction. It was held by the Court of Criminal Appeal that the conviction was right and since, according to the law of England at that time, the appellant on an indictment for man-slaughter could not have been convicted for dangerous driving, he could not have pleaded autrefois acquit if the charge of dangerous driving had been tried separately. The Court of Criminal Appeal further expressed the view that it was undesirable for a charge of dangerous driving to be made a count in an indictment for manslaughter and that where it was desired to prefer both charges,  they should appear in separate indictments. It will be observed that Stringer’s case is almost exactly on all fours with the case before us on appeal. Mr. Walker also referred us to the case of R. v. Large, 1939, 1 ALL E.R. 753, where the appellant was charged on the first count of the indictment with manslaughter of a child and on the second count in the same indictment with wilful ill-treatment of the child.

The jury at the trial found the appellant guilty of manslaughter and indicated that they were prepared to return a similar verdict on the second count, but the trial Court took the view that this second count was included in the first, and it was not, therefore, proceeded with. Humphries, J., delivering the judgment of the Court of Criminal Appeal, expressed the view, contrary to that held by the trial Judge, that there was no reason why the jury should not have found the appellant guilty on both counts. Mr. Walker also made various submissions as to the effect of section 181 of the Criminal Procedure Ordinance, but we do not find it necessary to express our views on this point.

We consider that the correct view of the law is on the authority of Stringer’s case and Large’s case that while it is undesirable that any other count should be included in an indictment for manslaughter, nevertheless, if another count is so included, such as in the present case for dangerous driving, there is nothing to prevent conviction and punishment of the accused on both counts.

In all the circumstances, we have come to the conclusion that the sub-missions of Mr. Walker are sound and that the conviction and punishment on both counts of the information in this case was right. As above stated, we find nothing in the grounds of appeal which would warrant our taking a view different from that of the learned trial Judge, and in the circumstances, therefore, the appeal must be dismissed.

Appeal Dismissed

Other Citation: (1960) LCN/0864(SC)

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